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Global Forum on Transparency and Exchange

of Information for Tax Purposes

Peer Review Report on the Exchange of Information
on Request

Australia
2017 (Second Round)
Global Forum
on Transparency
and Exchange
of Information for Tax
Purposes: Australia
2017 (Second Round)
PEER REVIEW REPORT ON THE EXCHANGE
OF INFORMATION ON REQUEST

August 2017
(reflecting the legal and regulatory framework
as at May 2017)
This work is published on the responsibility of the Secretary-General of the
OECD. The opinions expressed and arguments employed herein do not
necessarily reflect the official views of the OECD or of the governments of its
member countries or those of the Global Forum on Transparency and Exchange
of Information for Tax Purposes.

This document and any map included herein are without prejudice to the status
of or sovereignty over any territory, to the delimitation of international frontiers
and boundaries and to the name of any territory, city or area.

Please cite this publication as:
OECD (2017), Global Forum on Transparency and Exchange of Information for Tax Purposes:
Australia 2017 (Second Round): Peer Review Report on the Exchange of Information on Request,
OECD Publishing, Paris.
http://dx.doi.org/10.1787/9789264280069-en

ISBN 978-92-64-28005-2 (print)
ISBN 978-92-64-28006-9 (PDF)

Series: Global Forum on Transparency and Exchange of Information for Tax Purposes
ISSN 2219-4681 (print)
ISSN 2219-469X (online)

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TABLE OF CONTENTS – 3

Table of contents

About the Global Forum ����������������������������������������������������������������������������������������� 5

Abbreviations, acronyms and definitions��������������������������������������������������������������� 7

Executive summary��������������������������������������������������������������������������������������������������11

Preface��������������������������������������������������������������������������������������������������������������������� 19

Overview of Australia��������������������������������������������������������������������������������������������� 23

Overview of the AML/CFT framework��������������������������������������������������������������� 27

Part A: Availability of information������������������������������������������������������������������������31
A.1. Legal and beneficial ownership and identity information������������������������������31
A.2. Accounting records��������������������������������������������������������������������������������������� 57
A.3. Banking information������������������������������������������������������������������������������������� 64

Part B: Access to information������������������������������������������������������������������������������� 81
B.1. Competent authority’s ability to obtain and provide information����������������� 81
B.2. Notification requirements, rights and safeguards����������������������������������������� 87

Part C: Exchanging information��������������������������������������������������������������������������� 89
C.1. Exchange of information mechanisms����������������������������������������������������������� 89
C.2. Exchange of information mechanisms with all relevant partners����������������� 94
C.3. Confidentiality����������������������������������������������������������������������������������������������� 95
C.4. Rights and safeguards of taxpayers and third parties����������������������������������101
C.5. Requesting and providing information in an effective manner��������������������103
Annex 1: Jurisdiction’s response to the review report ��������������������������������������111
Annex 2: List of jurisdiction’s EOI mechanisms������������������������������������������������113

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
4 – TABLE OF CONTENTS

Annex 3: List of laws, regulations and other material received����������������������� 123
Annex 4: Authorities interviewed during on-site visit ������������������������������������� 125
Annex 5: List of in-text recommendations��������������������������������������������������������� 126

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
ABOUT THE GLOBAL FORUM – 5

About the Global Forum

The Global Forum on Transparency and Exchange of Information for Tax
Purposes is a multilateral framework for tax transparency and information
sharing, within which over 140 jurisdictions participate on an equal footing.
The Global Forum monitors and peer reviews the implementation of
international standard of exchange of information on request (EOIR) and
automatic exchange of information. The EOIR provides for international
exchange on request of foreseeably relevant information for the administra-
tion or enforcement of the domestic tax laws of a requesting party. All Global
Forum members have agreed to have their implementation of the EOIR stand-
ard be assessed by peer review. In addition, non-members that are relevant
to the Global Forum’s work are also subject to review. The legal and regula-
tory framework of each jurisdiction is assessed as is the implementation of
the EOIR framework in practice. The final result is a rating for each of the
essential elements and an overall rating.
The first round of reviews was conducted from 2010 to 2016. The Global
Forum has agreed that all members and relevant non-members should be
subject to a second round of review starting in 2016, to ensure continued
compliance with and implementation of the EOIR standard. Whereas the first
round of reviews was generally conducted as separate reviews for Phase 1
(review of the legal framework) and Phase 2 (review of EOIR in practice),
the EOIR reviews commencing in 2016 combine both Phase 1 and Phase 2
aspects into one review. Final review reports are published and reviewed
jurisdictions are expected to follow up on any recommendations made. The
ultimate goal is to help jurisdictions to effectively implement the international
standards of transparency and exchange of information for tax purposes.
For more information on the work of the Global Forum on Transparency
and Exchange of Information for Tax Purposes, please visit www.oecd.org/
tax/transparency.

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
Abbreviations, acronyms and definitions– 7

Abbreviations, acronyms and definitions

AML/CFT Anti-Money Laundering/Countering the Financing
of Terrorism
ABN Australian Business Number
ABN Act A New Tax System (Australian Business Number)
Act 1999
ABR Australian Business Register
ACIP Applicable Customer Identification Procedures
ADI Authorised Deposit-taking Institutions
AGSVA Australian Government Security Vetting Agency
AML/CTF Act Anti-Money Laundering and Counter-Terrorism
Financing Act 2006
AML/CTF Rules Anti-Money Laundering and Counter-Terrorism
Financing Rules Instrument 2007 (No. 1)
AMLRO Anti-Money Laundering Reporting Officer
ANAO Australian National Audit Office
APPs Australian Privacy Principles
ARBN Australian Registered Body Number
ASIC Australian Securities and Investments Commission
APRA Australian Prudential Regulatory Authority
AUSTRAC Australian Transaction Reports and Analysis Centre
Corporations Act Corporations Act 2001
CDD Customer Due Diligence

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
8 – Abbreviations, acronyms and definitions

Designated Entities Designated Entities are defined for the purpose of
this report as domestic companies, foreign companies
with sufficient nexus which have a relationship with
an AML obligated service provider that is relevant
for the purposes of EOIR in Australia, domestic
partnerships and foreign partnerships that carry on
business in Australia or have taxable income therein.
Designated Services All designated services are set out in section 6,
AML/CTF Act, and includes three main categories
(i) financial services (e.g. account/deposit-taking
services, cash carrying/payroll services, currency
exchange services, factoring a receivable, life insurance
services, loan services, and securities derivatives
market(s)/investment services); (ii) bullion and
(iii) gambling services.
DTC Double Tax Convention
DIBP Department of Immigration and Border Protection
EOIR Exchange of information on request
FOI Freedom of Information
FOI Act Freedom of Information Act 1982
FTR Act Financial Transaction Reports Act 1988
GST Goods and Services Tax
ITAA 1936 Income Tax Assessment Act 1936
ITAA 1997 Income Tax Assessment Act 1997
JSCOT Joint Standing Committee on Treaties
Major Reporters Major Reporters are Reporting Entities which hold
significant market share and position, with high degrees
of business or product complexity.
MER Mutual Evaluation Report
MIT Managed Investment Trust
Multilateral OECD Convention on Mutual Administrative Assistance
Convention (MAAC) in Tax Matters
PAYG Pay As You Go
Privacy Act Privacy Act 1988

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
Abbreviations, acronyms and definitions– 9

Prudential Standard A Prudential Standard is a legislative instrument
made under the Banking Act 1959. The APRA
establishes and enforces prudential standards, which
ADIs are required to comply with.
Reporting Entity A Reporting Entity under the AML/CTF Act must be
a “person” and must provide a Designated Service.
Reporting entities include financial institutions, bullion
dealers and entities that provide gaming or gambling
activities. A “person” is an individual (that is, a natural
person), a company (for example, private company,
public company, public and listed company or a foreign
company), a trust (for example, discretionary family or
unit), a partnership (incorporated and unincorporated),
an incorporated or unincorporated association, a
corporation sole and a body politic.
SMSF Self-managed superannuation funds
TAA 1953 Taxation Administration Act 1953
TIEA Tax Information Exchange Agreement
TFN Tax File Number
2016 Assessment Assessment Criteria Note, as approved by the Global
Criteria Note Forum on 29-30 October 2015.
2016 Methodology 2016 Methodology for peer reviews and non-member
reviews, as approved by the Global Forum on
29-30 October 2015.
2016 Terms of Terms of Reference related to Exchange of Information
Reference (ToR) on Request (EOIR), as approved by the Global Forum
on 29-30 October 2015

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
Executive summary– 11

Executive summary

1. In 2010 the Global Forum evaluated Australia in a combined review
against the 2010 Terms of Reference for both the legal implementation of the
EOIR standard as well as its operation in practice. The ratings of each ele-
ment and the overall rating of the 2010 Report were given by the Peer Review
Group in October 2013 and approved by the Global Forum in November 2013,
with the conclusion that Australia was rated Compliant overall. This report
analyses the implementation of the EOIR standard by Australia in respect
of EOI requests processed during the period of 1 April 2013-31 March 2016
against the 2016 Terms of Reference. This report concludes that Australia is
rated Largely Compliant overall.
2. The following table shows the comparison with the results from
Australia’s most recent peer review report:

Comparison of ratings for First Round Report and
Second Round Report
Element First Round Report Second Round Report
A.1 Availability of ownership and identity information C PC
A.2 Availability of accounting information C C
A.3 Availability of banking information C LC
B.1 Access to information C C
B.2 Rights and Safeguards C C
C.1 EOIR Mechanisms C C
C.2 Network of EOIR Mechanisms C C
C.3 Confidentiality C C
C.4 Rights and Safeguards C C
C.5 Quality and timeliness of requests and responses C C
OVERALL RATING C LC

C = Compliant; LC = Largely Compliant; PC = Partially Compliant; NC = Non-Compliant

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
12 – Executive summary

Progress made since previous review

3. The 2010 Report made recommendations in respect of three essen-
tial elements, one regarding nominees under element A.1, one regarding
the monitoring of the accountants’ concession under element C.4 and one
recommendation regarding status updates in relation to exchange of infor-
mation in element C.5. Australia has addressed the recommendations under
elements C.4 and C.5.

Key recommendation(s)

4. Since the 2010 Report, Australia continues to be compliant in all ele-
ments except elements A.1 and A.3. In respect of the new aspects of the 2016
ToR, Australia’s main deficiencies relate to the new requirements on benefi-
cial ownership, both under element A.1 and element A.3.
5. The recommendations regarding the legal and regulatory framework
in element A.1 and element A.3 are mostly concentrated on the issue of avail-
ability of beneficial ownership; both regarding legal entities and trusts.
6. Specifically, under the new recommendations under element A.1
(availability of legal and beneficial ownership information), Australia is rec-
ommended to ensure that information is maintained on beneficial owners of
Designated Entities 1 and trust arrangements in all cases.
7. Regarding element A.3 (availability of banking information (includ-
ing beneficial ownership of bank accounts), introduced business obligations
set out in the AML/CTF Act and Rules do not explicitly state that the
Reporting Entity relying on a third party remains ultimately responsible for
CDD measures. Australia should ensure that accurate and update beneficial
ownership information on bank account holders is available in all cases.
8. Regarding the deficiencies identified in the implementation of EOI
in practice for both elements A.1 and A.3, the new legislation on CDD
introduced in June 2014 was fully applicable only after a transitional period
of 18 months (i.e. not until the end of 2015). During that period, and up to the
time of the review, only a small portion of the total Reporting Entities popu-
lation has been monitored regarding the implementation of the new rules;
however it covered a broad cross-section of industries including financial

1. Designated Entities are defined for the purpose of this report as domestic com-
panies, foreign companies with sufficient nexus which have a relationship with
an AML obligated service provider that is relevant for the purposes of EOIR in
Australia, domestic partnerships and foreign partnerships that carry on business
in Australia or have taxable income therein.

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
Executive summary– 13

institutions (both foreign, investment and domestic), remitters, stockbrokers
and custodians. As a consequence, Australia should monitor the effective
implementation of the 2014 CDD rules by Reporting Entities, notably by
ensuring that adequate oversight and enforcement activities are carried out.

Overall rating

9. Although element A.1 is rated partially compliant and element A.3
is rated largely compliant, elements A.2, B.1, B.2, C.1, C.2, C.3, C.4 and C.5
are rated compliant. As a result, the overall rating is largely compliant. A
follow up report on the steps undertaken by Australia to address the recom-
mendations made in this report should be provided to the PRG no later than
30 June 2018 and thereafter in accordance with the procedure set out under
the 2016 Methodology.
10. The table below reproduces the recommendations made in this
report, namely only in respect of elements A.1, A.2 and A.3.

Summary of determinations, ratings and recommendations

Factors underlying
Determination recommendations Recommendations
Element A.1
Jurisdictions should ensure that ownership and identity information, including information on
legal and beneficial owners, for all relevant entities and arrangements is available to their
competent authorities.
Legal and regulatory
framework
determination:
The element is in
place, but certain
aspects of the legal
implementation of
the element need
improvement.

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
14 – Executive summary

Legal and regulatory Although certain information Australia should ensure
framework relevant for identification of that beneficial owners of
determination: beneficial owners is required all Designated Entities are
The element is in to be available mainly based required to be identified in line
place, but certain on tax and company law with the standard.
aspects of the legal obligations, only financial
implementation of institutions (and other
the element need Reporting Entities under the
improvement. AML/CTF Act, which are
(continued) irrelevant for EOI purposes,
such as those in the gaming
and bullion sector) are
required to identify beneficial
owners of Designated Entities,
in line with the standard in all
cases. Since 2007, Reporting
Entities must identify
beneficial owners of most
forms of companies (except
incorporated partnerships and
associations). Since 1 June
2014, Reporting Entities are
required to identify and verify
the beneficial ownership and
control of all their customers,
including companies,
partnerships, trusts and other
legal arrangements. Finally,
although most Designated
Entities are likely to have a
bank account in Australia,
these Designated Entities
are not legally required to
engage a financial institution in
Australia in all cases.

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
Executive summary– 15

Legal and regulatory Although Australia has some Australia should ensure that
framework identity information on trusts information on beneficial
determination: under the tax laws and the ownership information in
The element is in common law (namely, the respect of all express trusts
place, but certain identity of the trustee, settlor administered in Australia
aspects of the legal and direct beneficiary(ies)), the or with a trustee resident
implementation of scope of these requirements in Australia is available as
the element need does not cover the beneficial required under the standard.
improvement. ownership requirements under
(continued) the 2016 Terms of Reference
in all cases, especially in
respect of “any other natural
person exercising ultimate
effective control over the trust”.
The identification of
beneficial owners of trusts is
nevertheless required under
the AML/CFT rules (which
commenced in June 2014),
but only where a trustee is
provided a service (prescribed
in section 6 of the AML/CTF
Act) by a Reporting Entities;
that is mostly where the
trust has a bank account in
Australia.
Consequently, there may be
instances where information
on beneficial owners is not
available in respect of all
express trusts administered
in Australia or in respect of
which a trustee is resident
in Australia, unless these
trusts have a bank account in
Australia.

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
16 – Executive summary

EOIR rating: Partially Australia introduced Australia should monitor the
Compliant enhancements to CDD effective implementation of the
obligations, which came 2014 CDD rules by Reporting
into effect on 1 June 2014, Entities, notably by ensuring
accompanied by a transitional that adequate oversight and
period of 18 months to enable enforcement activities are
Reporting Entities to achieve carried out.
full compliance. During that
period, and up to the end
of the review period, only a
small portion of the Reporting
Entities has been monitored
regarding the implementation
of the 2014 CDD rules. In
addition, due to the short
period of time since the full
application of the 2014 Rules,
the adequacy of the oversight
and enforcement in practice
could not be fully assessed.
Element A.2
Jurisdictions should ensure that reliable accounting records are kept for all relevant entities
and arrangements
Legal and regulatory
framework
determination:
The element is in place.
EOIR rating: Compliant
Element A.3
Banking information and beneficial ownership information should be available for all
account-holders
Legal and regulatory Introduced business Australia should ensure that
framework determination: obligations set out in the AML/ accurate and update beneficial
CTF Rules do not explicitly ownership information on bank
The element is in state that the bank relying on a account holders is available in
place, but certain third party remains ultimately all cases
aspects of the legal responsible for CDD measures
implementation of performed on their customers,
the element need and notably beneficial
improvement. ownership information.

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
Executive summary– 17

EOIR rating: Australia introduced Australia should monitor the
enhancements to CDD effective implementation of the
Largely Compliant obligations, which came 2014 CDD rules by Reporting
into effect on 1 June 2014, Entities, notably by ensuring
accompanied by a transitional that adequate oversight and
period of 18 months to enable enforcement activities are
Reporting Entities to achieve carried out.
full compliance. During that
period, and up to the end
of the review period, only a
small portion of the Reporting
Entities has been monitored
regarding the implementation
of the new rules. In addition,
due to the short period of
time since the full application
of the 2014 CDD Rules, the
adequacy of the oversight and
enforcement in practice could
not be fully assessed.
Competent authorities should have the power to obtain and provide information that is the
subject of a request under an exchange of information arrangement from any person within
their territorial jurisdiction who is in possession or control of such information (irrespective
of any legal obligation on such person to maintain the secrecy of the information) (ToR B.1)
Legal and regulatory
framework
determination: The
element is in place.
EOIR rating:
Compliant
The rights and safeguards (e.g. notification, appeal rights) that apply to persons in the
requested jurisdiction should be compatible with effective exchange of information (ToR B.2)
Legal and regulatory
framework
determination: The
element is in place.
EOIR rating:
Compliant

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
18 – Executive summary

Exchange of information mechanisms should provide for effective exchange of information
(ToR C.1)
Legal and regulatory
framework
determination: The
element is in place.
EOIR rating:
Compliant
The jurisdictions’ network of information exchange mechanisms should cover all relevant
partners (ToR C.2)
Legal and regulatory
framework
determination: The
element is in place.
EOIR rating:
Compliant
The jurisdictions’ mechanisms for exchange of information should have adequate provisions
to ensure the confidentiality of information received (ToR C.3)
Legal and regulatory
framework
determination: The
element is in place.
EOIR rating:
Compliant
The exchange of information mechanisms should respect the rights and safeguards of
taxpayers and third parties (ToR C.4)
Legal and regulatory
framework
determination: The
element is in place.
EOIR rating:
Compliant
The jurisdiction should request and provide information under its network of agreements in
an effective manner (ToR C.5)
Legal and regulatory The assessment team is not in a position to evaluate
framework whether this element is in place, as it involves issues of
determination: practice that are dealt with in the implementation of EOIR
in practice.
EOIR rating:
Compliant

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
Preface – 19

Preface

11. This report is the second review of Australia conducted by the
Global Forum. Australia previously underwent an EOIR Combined review
in 2010 of both its legal and regulatory framework and the implementation
of that framework in practice. The report containing the conclusions of the
Combined review was first published in September 2010 (reflecting the legal
and regulatory framework in place as of August 2010) (the 2010 Report).
12. The Combined review was conducted according to the ToR approved
by the GF in February 2010 (2010 ToR) and the Methodology used in the first
round of reviews. The 2010 Report was published without rating of the indi-
vidual essential elements or any overall rating, as the Global Forum waited
until a representative subset of reviews from across a range of Global Forum
members had been completed in 2013 to assign and publish ratings for each
of those reviews. Australia’s 2010 Report was part of this group of reports.
Accordingly, the 2010 Report was republished in 2013 to reflect the ratings
for each element and the overall rating for Australia.
13. This evaluation is based on the 2016 ToR, and has been prepared
using the 2016 Methodology. The evaluation is based on information available
to the assessment team including the exchange of information arrange-
ments signed, laws and regulations in force or effective as at 24 May 2017,
Australia’s EOIR practice in respect of EOI requests made and received
during the three year period from 1 April 2013 to 31 March 2016, Australia’s
responses to the EOIR questionnaire, information supplied by partner juris-
dictions, as well as information provided by Australia’s authorities during
the on-site visit that took place from 22 to 24 November 2016 in Canberra,
Australia.
14. The evaluation was conducted by an assessment team consisting of
two expert assessors and one representative of the GF Secretariat: Mr. Rob
Gray, Director of International Tax Policy, Guernsey; Peter Deblon, Deputy
Head of Division IV B 6, German Federal Ministry of Finance; and Séverine
Baranger from the Global Forum Secretariat.

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
20 – Preface

15. The report was approved by the PRG at its meeting on 20 July
2017and was adopted by the GF on [date].
16. For the sake of brevity, on those topics where there has not been any
material change in the situation in Australia or in the requirements of the
GF ToR since the 2010 Report, this evaluation does not repeat the analysis
conducted in the previous evaluation, but summarises the conclusions and
includes a cross-reference to the detailed analysis in the previous reports.
17. Information on each of Australia’s reviews is listed in the table below.

Summary of reviews
Period under Legal Date of adoption
Review Assessment team review framework as of by Global Forum
Combined Ms. Ruedah Karim, Director, International 1 January 2007 to June 2010 September 2010
report Affairs and EOI Division, Inland Revenue 31 December 2009
Board Malaysia; Ms. Sarita De Geus, Senior
Policy Advisor International Tax Law at
the Directorate-General for the Tax and
Customs Administration of the Netherlands
Ministry of Finance; and Mr. Dónal Godfrey
from the Global Forum Secretariat.
EOIR Mr. Rob Gray, Director of International Tax 1 April 2013 to 26 May 2017 [June 2017]
report Policy, Guernsey; Peter Deblon, Deputy 31 March 2016
(Second Head of Division IV B 6, German Federal
Round) Ministry of Finance; and Séverine Baranger
from the Global Forum Secretariat.

Brief on 2016 ToR and methodology

18. The 2016 ToR were adopted by the Global Forum in October 2015.
The 2016 ToR break down the standard of transparency and exchange of
information into 10 essential elements and 31 enumerated aspects under
three broad categories: (A) availability of information; (B) access to informa-
tion; and (C) exchanging information. This review assesses Australia’s legal
and regulatory framework and the implementation and effectiveness of this
framework against these elements and each of the enumerated aspects.
19. In respect of each essential element (except element C.5 Exchanging
Information, which uniquely involves only aspects of practice) a determina-
tion is made regarding Australia’s legal and regulatory framework that either:
(i) the element is in place, (ii) the element is in place, but certain aspects of
the legal implementation of the element need improvement, or (iii) the ele-
ment is not in place. In addition, to assess Australia’s EOIR effectiveness

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
Preface – 21

in practice, a rating is assigned to each element of either: (i) compliant,
(ii) largely compliant, (iii) partially compliant, or (iv) non-compliant. These
determinations and ratings are accompanied by recommendations for
improvement where appropriate. An overall rating is also assigned to reflect
Australia’s overall level of compliance with the EOIR standard.
20. In comparison with the 2010 ToR, the 2016 ToR includes new aspects
or clarification of existing principles with respect to:
• the availability of and access to beneficial ownership information;
• explicit reference to the existence of enforcement measures and
record retention periods for ownership, accounting and banking
information;
• clarifying the standard for the availability of ownership and account-
ing information for foreign companies;
• rights and safeguards;
• incorporating the 2012 update to Article 26 of the OECD Model Tax
Convention and its Commentary (particularly with reference to the
standard on group requests); and
• completeness and quality of EOI requests and responses.
21. Each of these new requirements are analysed in detail in this report.

Brief on consideration of FATF evaluations and ratings

22. The Financial Action Task Force (FATF) evaluates jurisdictions for
compliance with anti-money laundering and combating the financing of
terrorism (AML/CFT) standards. Its reviews are based on a country’s com-
pliance with 40 different technical recommendations and the effectiveness
regarding 11 immediate outcomes, which cover a broad array of money-
laundering issues.
23. The definition of beneficial owner included in the 2012 FATF stand-
ards has been incorporated into elements A.1, A.3 and B.1 of the 2016 ToR.
The 2016 ToR also recognises that FATF materials can be relevant for car-
rying out EOIR assessments to the extent they deal with the definition of
beneficial ownership, as that definition applies to the standard set out in the
2016 ToR (see 2016 ToR, annex 1, part I.D). It is also noted that the purpose
for which the FATF materials have been produced (combatting money-laun-
dering and terrorist financing) are different from the purpose of the standard
on EOIR (ensuring effective exchange of information for tax purposes), and
care should be taken to ensure that assessments under the ToR do not evaluate
issues that are outside the scope of the Global Forum’s mandate.

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22 – Preface

24. While on a case-by-case basis, an EOIR assessment may refer to
some of the findings made by the FATF, the evaluations of the FATF cover
issues that are not relevant for the purposes of ensuring effective exchange
of information on beneficial ownership for tax purposes. In addition, EOIR
assessments may find that deficiencies identified by the FATF do not have
an impact on the availability of beneficial ownership for tax purposes; for
example because mechanisms other than based on AML/CTF exist within
that jurisdiction to ensure that beneficial ownership information is available
for tax purposes.
25. These differences in the scope of reviews and in the approach used
may result in differing outcomes.

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Overview of Australia– 23

Overview of Australia

26. This overview provides some basic information about Australia
that serves as context for understanding the analysis in the main body of the
report. This is not intended to be a comprehensive overview of Australia’s
legal, commercial or regulatory systems.

Legal system

27. The Australian Constitution established a federal system of govern-
ment under which powers are distributed between the Federal Government
and the States and Territories. It defines exclusive powers (investing the
Federal Government with the exclusive power to make laws on matters such
as trade and commerce, taxation, defence, external affairs, and immigration
and citizenship) and concurrent powers (where both tiers of government are
able to enact laws). The States and Territories have independent legislative
power in all matters not specifically assigned to the Federal Government.
Where there is any inconsistency between Federal and State or Territory
laws, federal laws prevail. Federal laws apply to the whole of Australia.
Australia also has a system of local government (e.g. city and shire councils).
28. In effect, Australia has nine legal systems – the eight State and
Territory systems and one federal system. Each of the federal and state/
territory systems incorporates three separate branches of government – leg-
islative, executive and judicial. Parliaments make the laws, the executive
government administers the laws, and the judiciary independently interprets
and applies them.
29. The High Court of Australia (Australia’s Supreme Court) interprets
and applies the law of Australia, decides cases of special federal significance,
including challenges to the constitutional validity of laws, and hears appeals
(by special leave) from the Federal, State and Territory courts. It is the high-
est court of appeal on all matters, whether decided in the Federal or State/
Territory jurisdictions.

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24 – Overview of the financial services sector

30. According to section 4 of the International Tax Agreements Act 1953,
any tax treaty enacted as a Schedule to that Act (and therefore given the force
of law in Australia) will prevail over anything inconsistent in other Australian
domestic tax law. All the Acts and legislation referred to in this report apply
at a federal level, unless otherwise specifically indicated.

Tax system

31. The tax system in Australia is administered by the Australian
Taxation Office (ATO). The ATO is the Australian Government’s main
revenue collection agency (the ATO collected 88.25% of the Australian gov-
ernment’s revenue in the 2014/15 financial year). The Taxation Administration
Act 1953 (TAA 1953), and the Regulations made under it, contain provisions
dealing with the administration of the tax laws by, and the powers of the ATO.
32. Australia’s tax system operates on a system of self-assessment where
taxpayers are responsible for assessing their tax liability. The main source of
revenue is from income tax (under which capital gains are also taxed) and other
taxes, such as the fringe benefits tax. The income tax rate for individual taxpay-
ers is a progressive scale up to 45% for higher income earners. The company
tax rate is 30%. A goods and services tax (GST) applies at a rate of 10% on the
supply of goods and services in Australia and on goods imported into Australia.
33. Residents are taxed on their worldwide income while non-residents
are normally liable to tax only in respect of Australian source income.

Financial services sector

34. The section below provides an overview of the financial sector and
its supervision.

Overview of the financial services sector

35. The Australian financial sector includes banks, credit unions, build-
ing societies, general insurance and reinsurance companies, life insurance,
friendly societies and the superannuation industry. Australian financial
intermediaries currently manage assets of around AUD 2.3 trillion, which is
equivalent to about 250% of GDP of Australia.
36. Authorised Deposit-taking Institutions (ADIs) are corporations which
are authorised to take deposits from customers under the Banking Act 1959.
ADIs include banks, building societies and credit unions. All ADIs are sub-
ject to the same Prudential Standards. The main difference between banks,
building societies and credit unions is their capital and ownership structure,

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Overview of the financial services sector– 25

and the use of the names “bank”, “building society” and “credit union” is
subject to corporations meeting certain criteria listed under the Banking Act
1959. The Australian Prudential Regulation Authority (APRA) authorises
ADIs in Australia to provide banking services (including taking money on
deposit) under the Banking Act 1959. APRA establishes and enforces pru-
dential standards, which ADIs are required to comply with. A Prudential
Standard 2 is a legislative instrument made under the Banking Act 1959.
37. In Australia banks are financial institutions authorised to carry on
banking business under the Banking Act 1959 or under State or Territory leg-
islation. There are currently 80 banks operating in Australia which hold total
assets of AUD 3 489.226 billion, but Australia’s banking sector is dominated
by four major banks. They account for about two thirds of the total assets
held in the Australian banking system.
38. Banks play a central role in the Australian financial system by
providing a wide range of financial services to all sectors of the economy,
including offering savings and cheque accounts, making loans, and offering
fund management and insurance services. Foreign banks must be approved
by the APRA to carry on a banking business in Australia under the Banking
Act 1959. Foreign banks can either operate as a wholesale bank through an
Australian branch, or to conduct banking business through an Australian-
incorporated subsidiary.
39. The Australian financial sector landscape is also composed of:
• nine building societies, holding total assets of AUD 23.3 billion;
• 85 credit unions, holding total assets of around AUD 41 billion.
Credit Union and building societies together account for about 2% of
Australian financial system assets;
• 16 money market operations, holding total assets of around
AUD 39.3 billion;
• 63 finance companies (including general financiers and pastoral
finance companies),holding total assets of around AUD 109 billion;
• 28 life insurance companies, holding total assets of around
AUD 200.761 billion, 113 general insurance companies holding total
assets of around AUD 111.401 billion, and 3 041 Superannuation and
approved deposit funds holding total assets of around AUD 1 538.1 bil-
lion; and
• 12 friendly societies.

2. Prudential Standards for ADIs can be found at the following APRA web page:
www.apra.gov.au/adi/prudentialframework/pages/adi-prudential-standards-and-
guidance-notes.aspx.

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26 – Overview of the financial services sector

Supervision of the financial services sector

40. The Australian Prudential Regulatory Authority (APRA) oversees
the finance services industries, including banks, credit unions, and building
societies. APRA is responsible for the licensing and prudential supervision
of Authorised Deposit-taking Institutions (ADIs), life and general insurance
companies and superannuation funds.
41. APRA issues capital adequacy guidelines for banks which are con-
sistent with the Basel II guidelines. All financial institutions regulated by
APRA are required to report on a periodic basis to APRA. Certain financial
intermediaries, such as investment banks (which do not otherwise operate as
ADIs) are neither licensed nor regulated under the Banking Act 1959 and are
not subject to the prudential supervision of APRA. They may be required to
obtain licences under the Corporations Act 2001 or other Commonwealth or
State/Territory legislation, depending on the nature of their business activities
in Australia. All banks, irrespective of the type of license, are subject to the
AML/CFT legislation (see below).
42. Money market corporations and finance companies are not super-
vised by APRA, but are subject to the same conduct and disclosure regulation
that the Australian Securities and Investments Commission (ASIC) applies
to the non-financial corporate sector. Money market corporations use short-
term finance loans to fund the financial and business sector as well as to fund
investments.
43. Banks and other service providers are also subject to obligations
under the Anti-Money Laundering and Counter-Terrorism Financing Act
2006 as “Reporting Entities”. They are required to identify and monitor
customers using a risk-based approach, develop and maintain an Anti-Money
Laundering and Counter-Terrorism Financing (AML/CTF) programme,
and report to the Australian Transaction Reports and Analysis Centre
(AUSTRAC) suspicious matters, certain cash transactions and international
funds transfer instructions and file annual compliance reports.

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Overview of the AML/CFT framework– 27

Overview of the AML/CFT framework

44. The Anti-Money Laundering and Counter-Terrorism Financing Act
2006 (AML/CTF Act) broadly regulates the financial, gambling, remittance
and bullion sectors or any entity that provides Designated Services listed in
the AML/CTF Act (“Reporting Entities”) and establishes their principal com-
pliance and reporting obligations. A Reporting Entity under the AML/CTF
Act must be a “person” and must provide a “Designated Service”. 3 Reporting
entities include financial institutions, bullion dealers and entities that provide
gaming or gambling activities.
45. The AML/CTF Act enables Reporting Entities to adopt a risk-based
approach to meeting regulatory obligations and sets out the general princi-
ples and obligations of Australia’s AML/CTF regime. Details of how these
obligations are to be carried out are set out in the Anti-Money Laundering
and Counter-Terrorism Financing Rules Instrument 2007 (No. 1) (AML/CTF
Rules).
46. AUSTRAC is both Australia’s AML/CFT regulator and specialist
financial intelligence unit. AUSTRAC is responsible for:
• supervising compliance with the requirements of Australia’s AML/
CTF regime;
• collecting and analysing information obtained through the reporting
obligations and augments the information into actionable financial
intelligence; and
• disseminating that actionable intelligence for investigation by law
enforcement, national security, revenue protection and regulatory
agencies, as well as international counterparts.

3. All Designated Services are set out in section 6, AML/CTF Act, and includes
three main categories (i) financial services (e.g. account/deposit-taking services,
cash carrying/payroll services, currency exchange services, factoring a receiv-
able, life insurance services, loan services, and securities derivatives market(s)/
investment services); (ii) bullion and (iii) gambling services.

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28 – Overview of the AML/CFT framework

47. AUSTRAC supervises all Reporting Entities in Australia for compli-
ance with Australia’s AML/CFT regime. One of AUSTRAC’s key regulatory
goals is to develop Reporting Entities understanding of money laundering
and terrorist financing risks and to strengthen their AML/CTF programmes
through educating and monitoring Reporting Entities, as well as working
with Reporting Entities to improve compliance in order to ultimately combat
and disrupt money laundering and terrorist financing. AUSTRAC conducts
a range of supervisory activities to improve and promote compliance with
AML/CTF obligations.
48. There have been additional reforms to Australia’s AML/CTF laws
since Australia’s last Global Forum evaluation. In June 2014, enhanced AML/
CTF Rules (2014 CDD Rules) came into force that introduced more strin-
gent CDD requirements and improved Australia’s compliance with the 2012
revised FATF standards. These rules are set out in section A.3. Availability
of Banking Information

FATF evaluation and consideration of the FATF report

49. The Financial Action Task Force (FATF) evaluates jurisdictions for
compliance with anti-money laundering and combating the financing of
terrorism (AML/CFT) standards. Its reviews are based on a country’s com-
pliance with 40 different technical recommendations and the effectiveness
regarding 11 immediate outcomes, which cover a broad array of money-
laundering issues.
50. The FATF adopted Australia’s fourth round Mutual Evaluation
Report (MER) on 27 February 2015, which was published on 21 April 2015.
The MER evaluated Australia’s technical compliance with the FATF’s revised
2012 standards and assessed the effectiveness of Australia’s AML/CTF
regime. Australia was one of the first countries in the world to be assessed
against the FATF’s revised standards.
51. The MER identified deficiencies in respect of the availability of ben-
eficial ownership information on legal entities and legal arrangements, which
will be discussed in sections A.1 and A.3 on the availability of beneficial
ownership information.
52. Australia provided the FATF with a first follow-up report in April
2016 to provide an initial update on Australia’s strategy to address the issues
identified in the MER. The report outlines action already taken since the
completion of the MER and priorities for coming years to improve compli-
ance with the FATF Recommendations by 2018 and improved effectiveness
by 2020.

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Overview of the AML/CFT framework– 29

Other EOI Activities carried out by Australia

53. The ATO carried out other forms of EOI as described below:
• Spontaneous EOI. The ATO conducts spontaneous exchanges with
all countries that have a Double Tax Convention (DTC) with Australia.
During the three year period of the review, the ATO had 226 incoming
spontaneous cases, and 125 outgoing spontaneous cases.
• Automatic EOI. Each year the ATO sends automatic data sets to its
treaty partners containing in total approximately 2 million records
relating to income paid to non-residents for interest, dividend,
pensions, unit trust distributions and foreign resident withholding
payments and variations. Similarly, the ATO receives approximately
300 000 records from around half of its treaty partners containing
various types of income derived by Australian residents.
• Assistance in Collection. Australia has assistance in collection (AiC)
in force, and MOUs in place, with Denmark, Iceland, Japan, the
Netherlands, New Zealand, Norway, South Africa and Sweden, under
the provisions of the relevant DTC or the Multilateral Convention
on Mutual Administrative Assistance in Tax Matters, as amended
(Multilateral Convention).
• Service of Documents. Due to the provision in the Multilateral
Convention, Australia has received four requests relating to the
Service of Documents, but has not yet made any requests to other
countries.
• Exchange of Rulings. Effective from 4 December 2014, the ATO
is required to exchange private rulings that relate to preferential tax
regimes and other cross-border dealings with other countries under
the OECD/G20 Base Erosion and Profit Shifting (BEPS) initiative
for the spontaneous compulsory exchange of private rulings. The
requirement for Australia to exchange these private rulings is limited
to other OECD and G20 countries and only to those countries which
have a comprehensive tax treaty with Australia, or are signatories to
the Multilateral Convention. Australia has sent information relating
to 12 rulings during the period of the review since this provision
entered into force.
• Country by country (CbC) reporting. Australia has implemented
the recommendations arising from Action 13 of the OECD/G20
BEPS initiative. This means that, for income years commencing
on or after 1 January 2016, Australia requires multinational entities
with an annual global income of AUD 1 billion or more to pro-
vide the ATO with a CbC report within 12 months after the end of

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30 – Overview of the AML/CFT framework

their income tax year. The ATO will exchange CbC reports on an
automatic basis where the exchange is supported by a Competent
Authority Agreement for the relevant reporting period under either
the Multilateral Convention or a comprehensive tax treaty with
Australia. The first batch of CbC reports will be due in Australia by
the end of December 2017; the first CbC reports will be exchanged
with other jurisdictions by mid-2018.

Recent developments

54. Since the adoption of the MER in April 2016, Australia has made
progress to address the deficiencies in its AML/CFT regime. Regarding ben-
eficial ownership, Australia indicated that progress includes requiring full
compliance with Australia’s strengthened CDD, and beneficial ownership
requirements by 1 January 2016, following the expiry of a transition period
for Reporting Entities.
55. Notwithstanding the transitional period, Australia’s major financial
institutions have already completed the ongoing and enhanced CDD require-
ments in respect of all account holders having regard to beneficial ownership
information. Subsequent to the review period, AUSTRAC has confirmed that
the key financial institutions (which represent 90% of total transaction report-
ing) have now taken appropriate steps to assure AUSTRAC that accounts of
all the customers opened prior to June 2014 are compliant and good practices
are being adopted by the industry. The AML/CTF regime will be further
strengthened in 2018 with amendments to clarify that financial institutions
remain liable for the accuracy and completeness of relevant beneficial owner-
ship and identification information obtained from third parties.
56. Australia has also progressed public consultation on extending the
scope of the AML/CTF regime to include DNFBPs and also consulted in
relation to the collection of beneficial ownership information for companies.

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Part A: Availability of information– 31

Part A: Availability of information

57. Sections A.1, A.2 and A.3 evaluate the availability of ownership and
identity information for relevant entities and arrangements, the availability of
accounting information and the availability of bank information.

A.1. Legal and beneficial ownership and identity information
Jurisdictions should ensure that ownership and identity information for all relevant
entities and arrangements is available to their competent authorities.

58. The 2010 Report found that A.1 was determined to be “in place” and
rated Compliant. A recommendation was made for Australia to take neces-
sary measures to ensure that an obligation is established for all nominees to
maintain relevant ownership information where they act as the legal owners
on behalf of any other person. To date, this recommendation has not been
addressed by Australia and therefore remains.
59. No issues were identified in the 2010 Report with respect to the avail-
ability of ownership and identity information in practice. The 2010 Report did
not include the exact number of requests received but indicated that Australia
received hundreds of requests annually.
60. In respect of those aspects of the 2016 ToR that were not evaluated
in the 2010 Report, particularly with respect to the availability of beneficial
ownership information, gaps have been identified and two recommenda-
tions on the legal framework and one monitoring recommendation have been
made. Beneficial ownership information is available in Australia for com-
panies, partnerships, trusts and other legal arrangements in case they hold a
bank account with a Reporting Entity or receive a service from a Reporting
Entity of the type described under section 6 of the AML/CTF Act. Since
2007, Reporting Entities must identify beneficial owners of most forms
of companies (except incorporated partnerships and associations), but the
requirements to identify beneficial owners did not apply to trust arrange-
ments. Since 1 June 2014, Reporting Entities are required to identify and
verify the beneficial ownership and control of all their customers, including

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32 – Part A: Availability of information

companies, partnerships, trusts and other legal arrangements. The AML/CTF
Rules allows for certain exemptions for certain types of customer types. In
addition, all accounts are subject to ongoing due diligence rules.
61. During the current peer review period Australia received 596 EOI
requests. Australia does not record information on the type of information
requested or the type of entity involved in each request. Whilst peers indi-
cated that their EOI requests included various types of information, including
legal and beneficial ownership information and accounting records, its main
EOI partner indicated that no legal and beneficial ownership information was
requested in the 282 EOI requests sent to the ATO during the peer review
period, and explained that legal ownership information was easily available
from public sources.
62. Australia indicated that during the peer review period, they have
received EOI requests concerning ownership information and in relation
to companies, partnerships and trusts. Australia also indicated that they
received 10 EOI requests for beneficial ownership information, and they
were able to obtain and provide this information to their treaty partners in
all cases.
63. The new table of determinations and ratings for the second round of
reviews begins on the next page.

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Part A: Availability of information– 33

Determination on the Legal and Regulatory EOIR Framework
The element is in place, but certain aspects of the legal implementation of the
element need improvement.
Factors underlying
recommendations Recommendation(s)
Deficiencies identified Although certain information Australia should ensure
in the legal and relevant for identification of that beneficial owners of
regulatory EOIR beneficial owners is required all Designated Entities are
framework to be available mainly based required to be identified in line
on tax and company law with the standard.
obligations, only financial
institutions (and other
Reporting Entities under the
AML/CTF Act, which are
irrelevant for EOI purposes,
such as those in the gaming
and bullion sector) are
required to identify beneficial
owners of Designated Entities,
in line with the standard in all
cases. Since 2007, Reporting
Entities must identify
beneficial owners of most
forms of companies (except
incorporated partnerships and
associations). Since 1 June
2014, Reporting Entities are
required to identify and verify
the beneficial ownership and
control of all their customers,
including companies,
partnerships, trusts and other
legal arrangements. Finally,
although most Designated
Entities are likely to have a
bank account in Australia,
these Designated Entities
are not legally required to
engage a financial institution in
Australia in all cases.

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34 – Part A: Availability of information

Determination on the Legal and Regulatory EOIR Framework
The element is in place, but certain aspects of the legal implementation of the
element need improvement.
Factors underlying
recommendations Recommendation(s)
Although Australia has some Australia should ensure that
identity information on trusts information on beneficial
under the tax laws and the ownership information in
common law (namely, the respect of all express trusts
identity of the trustee, settlor administered in Australia
and direct beneficiary(ies)), the or with a trustee resident
scope of these requirements in Australia is available as
does not cover the beneficial required under the standard.
ownership requirements under
the 2016 Terms of Reference
in all cases, especially in
respect of “any other natural
person exercising ultimate
effective control over the
trust”. The identification of
beneficial owners of trusts is
nevertheless required under
the AML/CFT rules (which
commenced in June 2014),
but only where a trustee is
provided a service (prescribed
in section 6 of the AML/CTF
Act) by a Reporting Entity; that
is mostly where the trust has a
bank account in Australia.
Consequently, there may
be instances where the
identification of beneficial
owners is not required in
respect of all express trusts
administered in Australia or
in respect of which a trustee
is resident in Australia unless
these trusts have a bank
account in Australia.

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Part A: Availability of information– 35

Practical Implementation of the EOIR Standard
Factors underlying
recommendations Recommendation(s)
Deficiencies identified Australia introduced Australia should monitor the
in the implementation enhancements to CDD effective implementation of the
of EOI in practice obligations, which came 2014 CDD rules by Reporting
into effect on 1 June 2014, Entities, notably by ensuring
accompanied by a transitional that adequate oversight and
period of 18 months to enable enforcement activities are
Reporting Entities to achieve carried out.
full compliance. During that
period, and up to the end
of the review period, only a
small portion of the Reporting
Entities has been monitored
regarding the implementation
of the 2014 CDD rules. In
addition, due to the short
period of time since the full
application of the 2014 Rules,
the adequacy of the oversight
and enforcement in practice
could not be fully assessed.
Rating of element A.1 PARTIALLY COMPLIANT

A.1.1. Availability of legal and beneficial ownership information
for companies
64. The rules with respect to company formation in Australia are the
same as were reported in the 2010 Report (see paras. 34-36). Briefly, most
companies in Australia are formed pursuant to the Corporations Act, and
are required to register with the Australian Securities and Investment
Commission (ASIC) and with the ATO. Upon incorporation, the identity of
each member is known, as well as the identity of the directors.
65. There are 2 types of companies in Australia, which can either be
limited or unlimited by share capital 4:

4. An unlimited company is defined as a company whose members have no limit
placed on their liability. Both a company limited by shares and a company unlim-
ited with share capital issue shares to their members. The significant difference
between the two is that the liability of members that hold shares in a company
limited by shares is limited to the amount unpaid on their shares.

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36 – Part A: Availability of information

• Proprietary companies, which may be limited by shares or unlim-
ited by share capital and are generally used by small and medium
businesses. As at 30 June 2016, there were 2 349 382 proprietary
companies registered with ASIC. As at 31 March 2016, there were
1 750 789 proprietary companies registered on the Australian
Business Register (ABR) with the ATO. The difference in the
number of registration is explained by the following factors: (i) pro-
prietary companies are registered with ASIC under the Corporations
Act, which provides the legal existence of the company (see s119
Corporations Act), whereas the ABR does not register companies, it
registers businesses and issues a business identifier to entities includ-
ing companies, being the Australian Business Number (ABN); and
(ii) it is not a legal requirement that all proprietary companies have
an ABN and registration on the ABR
• Public companies, which may be limited by shares, limited by guar-
antee, or unlimited by share capital, or may be a no liability company.
These are generally used by large businesses. As at 31 March 2016,
there were 28 858 public companies registered on the ABR with the
ATO. As at 30 June 2016, there were 23 047 public companies reg-
istered with ASIC. For the same reason mentioned for proprietary
companies, registration with ASIC gives the company its legal exist-
ence as a body corporate and a public company. The ATO, through
the ABR, issues entities with a unique identifier (an ABN) by regis-
tering the entity in the ABR. The entity, including companies, must
make an application for it to be registered in the ABR. The differ-
ence in the numbers is also partly due to the dates the figures were
compiled (30 June 2016 for ASIC and 31 March 2016 for ATO) as the
ATO may not yet have taken businesses off the ABR that were no
longer registered.
66. It is also possible for a foreign company to carry out business in
Australia, in which case they need to register with both ASIC and the ATO.
As at 30 June 2016, there were 3 652 foreign companies registered with ASIC.
The ATO data warehouse indicates 3 293 companies registered as a foreign
company in Australia (as at 31 March 2016). The difference in the ATO and
ASIC figures is partly due to the dates the figures were compiled (30 June
2016 for ASIC and 31 March 2016 for ATO). Also as stated in paragraph 68,
it is not a requirement of the Corporations Act or the ABN Act for an entity
registered with ASIC to register on the ABR. Therefore as not all foreign
companies registered with ASIC are required to be registered on the ABR
the ATO figure may be lower. Because company registrations with ASIC
and ATO are separate processes administered by different government agen-
cies (and not all companies necessarily register for an ABN and TFN at the
same time), there may be a time lag between registration applications by the

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Part A: Availability of information– 37

company resulting in the differing numbers at a point in time. Finally, where
ASIC deregisters a foreign company for not meeting certain obligations, there
may be a delay between the ASIC deregistration and the date of cancellation
in the ABR.

Legal ownership and identity information requirements
67. As described in paragraphs 31-54 of the 2010 Report, legal owner-
ship and identity requirements for companies are mainly found in Australia’s
company law and the tax law.
68. The following characteristics apply to Australian public or private
companies:
• They come into existence under the Corporations Act 2001;
• They must apply for registration with the ASIC; and
• They are issued an identifier (the Australian Company Number
– ACN);
• They have certain company details held in ASIC registers; and
• They are required to hold a register of members.
69. The company entity may choose to apply to the Registrar of the ABR
for an ABN, which is maintained by the ATO. Entities that are not carrying
on an enterprise, such as shelf companies, corporate trustees, and holding
companies may choose not to apply for an ABN. Those entities that carry out
a trade or a business are likely to apply. As such. the ABN will make it easier
for the company to identify itself to government and apply for other registra-
tions such as GST, in order to meet other reporting obligations. However,
companies are not required by law to apply for an ABN or be registered in
the ABR, however if it is registered for GST, the GST registration number,
the status of the GST registration, and the date of effect of the registration
will be recorded in the ABR and made publicly available via ABN lookup.
The following table 5 shows a summary of the legal requirements to maintain
legal ownership information in respect of companies:

5. The table shows each type of entity and whether the various rules applicable
require availability of information for “all” such entities, “some” or “none”. “All”
in this context means that every entity of this type created is required to main-
tain ownership information for all its owners (including where bearer shares are
issued) and there are sanctions and appropriate retention periods. “Some” in this
context means that an entity will be required to maintain information if certain
conditions are met.

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38 – Part A: Availability of information

Legislation regulating ownership information of companies
Type Company law Tax law
Proprietary companies All Some
Public companies All Some
Foreign companies Some Some (more than 10% shareholding)

Company law requirements
70. This section deals with the obligations for companies (i) to maintain
ownership information and to notify authorities of the change in ownership
information and (ii) maintain records for a limited period of time.
71. General rules. The Corporations Act requires all companies to
maintain a register of all shareholders recording changes in ownership of
company shares. Failure to do so constitutes an offence under section168
Corporations Act (requirement to maintain a register of members). The share
register of an unlisted company must indicate any shares that a member does
not hold beneficially (subsection 169(5A) of the Corporations Act). This is
facilitated by notices that are required to be provided by transferees under
section 1072H of the Corporations Act and answers to tracing notices. These
registers are required to be made available for public inspection. It is an
offence for the transferee to fail to indicate that they will hold shares in a non-
beneficial capacity when lodging an instrument of transfer with a company
(section 1072H). Holding the share non-beneficially would typically be, for
example, where it is held by a person as trustee, nominee or on account of
another person.
72. Changes in ownership of proprietary companies are required to be
disclosed to ASIC but only for the 20 members with the largest holdings.
With respect to the other shareholders, the information is still available in
the shareholder register that the company is obligated to maintain. Failure to
comply is an offence under section 173(9A) Corporations Act.
73. Nominees. In Australia, the legal ownership of shares is reflected
prima facie in the share register (which establishes rights to dividends, voting
rights etc.). In the case of a transfer of shares, it is also a requirement that it be
declared whether the shares are held beneficially or non-beneficially. For the
purpose of ownership of shares, a legal person holds a share “beneficially”
if the person holds the share for the benefit of that person. A legal person
holds a share “non-beneficially” if they hold the share for the benefit of
another person, that is, not for the holder’s benefit. Accordingly, information
is available to ASIC to determine whether a share is held in a non-beneficial
capacity, but there is no recording of the identity of the beneficial owner. In
addition, AML/CTF requirements do not apply to Designated Non-Financial

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Part A: Availability of information– 39

Business and Professions (DNFBPs). As noted in the 2010 Report, nominees
that were not financial service licensees were not required to maintain own-
ership and identity information in respect of all persons for whom they acted
as legal owners.It was therefore recommended that Australia establish an
obligation for all nominees to maintain relevant ownership information where
they act as the legal owners on behalf of any other person. The Australian
authorities have clarified however that persons (including individuals 6) that
provide nominee services in the course of a financial services business are
required to hold an Australian Financial Services Licence, unless they fall
into an exemption category. These categories are limited and include situa-
tions where the nominee operates under another entity’s licence or is a wholly
owned subsidiary of the client (Australian Corporations Regulations 2001 –
Reg 7.6.01). Such entities acting as nominees would also then be subject to
AML/CFT requirements on beneficial ownership.
74. In addition, any person acting as nominee, including those not acting
in a professional capacity, would be considered under common law to be
acting in a fiduciary capacity. In the event that the nominee has derived
income (for example dividends or interest), it would be obliged to file an
Australian tax return (trust return) where it would need to disclose the
identity of the beneficiaries entitled to trust income, unless relieved of the
obligation to do so (in the case of bare trusts).
75. In addition to any tax obligations, the nominee would nevertheless
have a fiduciary obligation to hold information in respect of the identity of
its beneficiaries (although Australian authorities could take no enforcement
action if it was in fact not retained).
76. In light of this information, the recommendation on nominees con-
tained in the 2010 Report is removed, as identity information is available in
the case of nominees of companies.
77. Foreign companies. Foreign companies carrying on business
in Australia must first register with ASIC as a foreign company under
Section 601CM of the Corporations Act and must appoint a local agent who
must ensure compliance with the requirements of the Corporations Act
applying to the foreign body. There is no requirement to disclose ownership
information for foreign companies carrying on business in Australia under
the registration requirements of the Corporations Act. However, a shareholder
register must be kept in the same manner as required for an Australian com-
pany and in such a case ASIC must be notified as to where the register is
kept. Section 601CM of the Corporations Act provides that if a member of a
registered foreign company resides in Australia and requests the foreign com-
pany to register the member’s shares in a branch register kept in Australia,

6. Section.

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40 – Part A: Availability of information

then the foreign company must keep a branch register and register any shares
held by the member in the branch register. Accordingly, ASIC is not required
to be notified of the members. ASIC must be notified if a branch register is
to be kept or discontinued and the address where the branch register is kept.
78. In addition, foreign resident companies that derive Australian source
income are required to submit a company tax return (see below Tax law
requirements); however, the return does not routinely require the identifica-
tion of all legal or beneficial owners of shares.
79. Record keeping requirements (including liquidated companies)
under company law. A company is required to retain ownership information
in relation to shareholders who have ceased to be members within the last
seven years (section 169(7) Corporations Act).
80. Where a company has been wound up the liquidator must keep the
company’s records including ownership information for a period of 5 years,
unless approval for early destruction is given by a court or ASIC (section
Schedule 2 section 70-35 Corporations Act). Prior to legislative reforms
implemented on 1 March 2017, the application to destroy books and records
was required to be made to the Court (and not to ASIC) in the case where
the Court ordered the company be wound up. The courts have permitted the
early destruction of books following the winding up of a company’s affairs
by a liquidator. Since 1 March 2017, ASIC has issued a guidance on consid-
ering such applications, which is set out in ASIC Regulatory Guide 81. This
stipulates that ASIC will consider whether there are any investigations pend-
ing, whether ASIC has received complaints or reports of potential breaches
of the law, whether the liquidator has received requests to access the books,
the funds remaining in the administration, the cost of storage of the books,
the surplus or deficiency of funds in the administration, the length of time
between the final meeting of creditors and the date the books would be
destroyed and whether the winding up is a creditor or member winding up.
81. Under the corporations law, companies can only be voluntarily de-
registered in limited circumstances. In all other cases, a liquidator is required
to be appointed in accordance with the “winding up” procedure. These condi-
tions precedent to deregistration are, that the company must:
• have agreement from all members of the company to de-register it;
• not be carrying on a business;
• have assets valued at less than USD 1 000;
• have no outstanding liabilities (including fees and penalties); and
• not being involved in any legal proceedings.

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Part A: Availability of information– 41

82. In addition to voluntary de-registration, ASIC may itself initiate
de-registration of a company. This generally occurs where the company has
been remiss in meeting its obligations to ASIC (e.g. payment of fees, lodge-
ment of documents, etc.) and is commonly undertaken after two years of
non-payment.
83. Where the company is de-registered, its records, including the regis-
ter of members, must be kept by the company directors for three years after
the de-registration, and by the liquidator (if appointed by law) for a five-year
period after de-registration. In case there is no liquidator appointed (case
of voluntary de-registration with ASIC and compulsory de-registration by
ASIC), the three-year retention period applicable to company directors is
not in line with the standard, which requires a minimum five-year retention
period. However, the ASIC confirmed that the deregistration of compa-
nies due to failure to pay fees is only initiated after a minimum period of
12 months from the due date (by law). ASIC indicated that most of the dereg-
istrations thus far were carried out because the companies had not paid their
annual fees for at least two years. Accordingly, although the gap is limited,
Australia should ensure that legal and beneficial ownership information for
the de-registered companies is kept for a minimum period of 5 years in all
cases.
84. ASIC is subject to an obligation to “store” information given to it
under the laws it administers. This obligation is not subject to a time limit.
85. The corporations law requirements to retain documentation are sup-
plemented by the requirement to hold information relevant to the company’s
tax affairs (which generally include accounting and ownership information)
for a period of 5 years following lodgement of the tax return. This require-
ment exists for all taxpayers (including companies) that derive income in
Australia and, in the case of companies, the obligation to retain records vests
in the Public Officer of the company (a natural person ordinarily resident in
Australia).

Tax law requirements
86. The ATO holds ownership information through two means (i) the
annual tax return of the company and (ii) the Australian Business Number
(ABN), as detailed below.
87. Annual tax return. Every resident company that derives Australian
source income or foreign income and every non-resident company that
derives Australian source income is required to register with the ATO and to
lodge a tax return with the ATO. The compliance with the obligations to file a
tax return and the information to be included into the tax returns is monitored

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42 – Part A: Availability of information

by the ATO through the tax audits (see A.2. Oversight and Enforcement
Activities carried out by the ATO).
88. Domestic companies and foreign companies with taxable income in
Australia are also required to lodge reports that identify the name, address,
date of birth, gender and Tax File Number (TFN) or Australian Business
Number of all shareholders to whom dividends have been paid during the
year of income. The compliance with these obligations is reviewed during
tax audits (see A.2. Oversight and Enforcement Activities carried out by the
ATO).
89. For foreign companies, the company tax return requires companies
to identify their ultimate parent company and indicate the percentage of
foreign shareholding, where this is not less than 10%. A failure to provide
this information constitutes an offence under section 8C of the TAA 1953.
Non-resident companies must also appoint a resident Public Officer, who
can be compelled to produce information on behalf of the company. A resi-
dent Public Officer needs to be at least 18 years of age, to ordinarily reside
in Australia and to be capable of understanding the nature of the person’s
appointment as the public officer of the company. The Public Officer is
not subject to AML/CFT requirements. This information is available with
the ABR if the foreign company is registered with the ABR. Accordingly,
together with the requirements under corporate law, legal ownership infor-
mation on foreign companies is available in conformity with the Standard in
Australia.
90. Australian Business Register. The ATO maintains a register, the
Australian Business Register (ABR), of the businesses (i.e. any type of legal
persons and arrangements) holding an Australian Business Number (ABN).
The ABR provides a tool to the public to check if the entity (including com-
pany) exists, is registered for GST purposes, and is active or cancelled.
91. The Commissioner of Taxation is the Registrar. The ABR contains
information on individuals, companies, government agencies, partnerships
and superannuation funds that have applied for an ABN. Entities are not
required to register in the ABR but may choose to apply for an ABN. The
ABN will make it easier for the entity to identify itself to government and
apply for other registrations such as Goods and Services Tax (GST) or an
AUSkey, in order to meet other reporting obligations.
92. The application is subject to some verification, notably the enterprise
test 7 (except for companies). When an entity applies to be registered in the
ABR, the Registrar must be satisfied that the identity of the entity and the

7. Some entities have an automatic entitlement to an ABN due to the nature of the
entity, for example Corporations Act companies. For other entities, for example

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Part A: Availability of information– 43

identity of the entity’s associates have been established before an ABN is
issued. The type and number of associates to be identified will vary depend-
ing on factors such as the entity type and the residency status.
93. The ABR collects the following identity and ownership information:
• For companies, the identity of the directors, the public officer (and
where applicable the company secretary), and the top-20 shareholders;
• For “other incorporated and unincorporated entities”, the identity of
the office bearers (e.g. president, treasurer, public officer, secretary).
• For partnerships, the identity of all partners.
94. From December 2013, the information collected was expanded to
include:
• private and public company secretaries, where they are authorised to
make decisions and commitments on behalf of the company without
reference to the company directors;
• top 20 shareholders of private and unlisted public companies; and
• top 20 beneficiaries of closely held trusts.
95. Where an entity does apply to be registered in the ABR, and is so
registered, the entity has an obligation to notify the Registrar of any changes
to the details in the ABR that it provided to the Registrar; within 28 days of
becoming aware of the change (s14 ABN Act). Failure to comply with the
requirements to provide an update to the ABR within 28 days constitutes
an offence against Section 8C of the Taxation Administration Act 1953. The
Registrar undertakes campaigns to encourage ABN holders to update details
held on the ABR. These strategies are targeted at data fields the Registrar
knows are incomplete or present a high risk of being out of date.
96. Where the Registrar requests, in writing, information about the details
entered in the ABR from the entity, the entity has an obligation to provide
those details (s15 ABN Act).
97. Finally, an entity is required to cancel their ABN registration (in
accordance with section 18 of the ABN Act) if they are no longer entitled
to an ABN under section 8 of the ABN Act. The Registrar uses section 8 to
underpin compliance activities on existing ABN holders to ensure that enti-
ties (including companies) with active registrations are in fact carrying on an
enterprise.

partnerships, the entitlement to an ABN requires that the entity is carrying on an
enterprise. This test is explained at length in Ruling MT 2006/1.

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44 – Part A: Availability of information

Availability of legal ownership information in Practice
98. During the current peer review period Australia received a total of
596 EOI requests. The ATO indicated that 69 out of 569 (approximately 11%)
EOI requests received included aspects regarding ownership and identity
information. All peers confirmed they were satisfied with the information
received in all cases.
99. Similar to the outcomes found in the 2010 Report, the positive results
in obtaining legal ownership information for EOI purposes confirm the
adequacy of the enforcement and monitoring carried out by ASIC and the
ATO, respectively.

Enforcement and monitoring activities by ASIC
100. The 2010 Report found that the penalties for failure to maintain or
report information were dissuasive, but the Report did not cover the issue of
oversight by the ASIC. In the current review period, it can be concluded that
there is sufficient enforcement oversight and enforcement by the ASIC in
respect of the maintenance of legal ownership information.
101. In practice, ASIC must give every company an Extract of Particulars
(which is the information in the register relating to it, including shareholder
information) each year (s346A) within 2 months of its review date. The
review date is typically the registration date. A company must respond to an
Extract of Particulars that it receives if any particular set out in the extract
is not correct as at the date of receipt (s346C). In addition, every company
must pay an annual fee and pass a solvency resolution within 2 months of its
review date. This process is referred to as the “annual review” and ensures
the information held by ASIC is reviewed at least annually. Where a company
fails to pay their annual fee, ASIC may, and usually does, initiate de-regis-
tration (s601AB(1)(a)).
102. The ASIC registry administers more than 30 legal registers, which
contain the details of more than 2.3 million companies. In 2015-16, ASIC col-
lected fees amounting to AUD 876 million.
103. ASIC indicated that, in practice, most companies in Australia are
registered by company incorporators or registered agents (lawyers or account-
ants). ASIC operates a validation check to ensure that the registration file is
complete. In addition, 97% of applications for registration are carried out
online.
104. The ASIC Register is available to the public and can be searched.
Company summaries are free and include the Australian company number,
the company name, the registration date and the next company review date,
the status and type of company, the locality of the registered office and a list

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Part A: Availability of information– 45

of publicly available documents. In contrast, the current company extract
is a paid for search product which includes the registered office, the prin-
cipal place of business and contact addresses, officeholder details, external
administrator and appointed auditor details (if applicable), ultimate holding
company, share structure and member details and a list of publicly available
documents lodged by the company.
105. ASIC indicated that work has been carried out to ensure the integrity
of the data held by ASIC as follows:
• Integrity of the data is ensured by the sending of annual reviews, for
which companies are required to check their details. If the company
does not reply to the requests from the ASIC to check/update the
company details, the sanction is the de-registration of the company
(see below).
• ASIC initiated Compliance Programs, under which ASIC manages non-
compliance with legal requirements, which may result in ASIC-initiated
de-registration of the company. Under the Compliance Programs, ASIC
generated, sent and stored compliance notifications to non-compliant
entities. Subsequently, ASIC published notices on its Published Notices
website and finally updated the register to cease registration or to refer
the entity to ASIC Regulatory section for enforcement action, where
appropriate. This compliance programme does not monitor the obliga-
tion to maintain a share register.
106. In the year 2015-16, ASIC initiated the de-registration of 50 908 com-
panies on one or more of the following grounds:
• The company’s annual fee has not been paid in full at least 12 months
after the due date for payment; or
• If the three following conditions are met:
- The response to an Extract of Particulars given to a company is
at least six months late; and
- The company has not lodged any other documents required under
the Corporations Act in the last 18 months; and
- ASIC has no reason to believe that the company is carrying on
business.
107. ASIC indicated that most of the de-registrations thus far were car-
ried out because the companies had not paid their annual fees for at least two
years. For the year ending 30 June 2016, ASIC deregistered 50 908 companies
following a failure to pay the review fee from a total of 123 050 companies
deregistered. In practice, de-registered companies can apply for re-registration

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46 – Part A: Availability of information

but they must pay all the outstanding liability. If a company is deregistered
voluntarily (see conditions mentioned previously in paragraph 81) or following
the initiation of ASIC, ASIC may reinstate the company if the company should
not have been deregistered. The directors of the company immediately before
deregistration must keep the company’s books for 3 years after deregistration
(section 601AD(5)) unless a liquidator is appointed (see section A.1.1 Record
keeping requirements (including liquidated companies) under company law).
108. ASIC indicated that 4.2 million members hold the shares of 2.3 mil-
lion proprietary companies; amongst them 604 000 members hold the shares
non-beneficially. Shares held non-beneficially indicate that the shareholder is
holding the shares on behalf of another person, organisation or trust.

Enforcement and monitoring activities by ATO
109. In practice, the application for an ABN is mostly carried out elec-
tronically (97%). Under the current process, anyone can apply on behalf of
someone else. There is no identity check on the person who files the applica-
tion. However, there are pre-registration checks (e.g. whether there is true
entitlement to get the ABN), and risk analysis post-registration to prevent
GST fraud through the use of the ABN.
110. The Registrar indicated that it recently undertook a programme of
compliance activities to manage risks to the ABR, which does not per se
include the compliance with ownership information maintenance require-
ments). The Registrar does however collect the details of certain associates.
Since 2013 this has also included the details of the top 20 shareholders of pri-
vate and unlisted companies. These details are provided by the entity applying
for an ABN. There is no cross reference with other ATO or ASIC data. These
efforts aim, amongst others, to avoid GST frauds through the use of the ABN.
111. These activities can be categorised into three types of work:
I. The manual processing of ABN applications where a particular
risk has been identified at the point of application. In the period
01/04/2013 to 31/03/2016, the Registrar has manually assessed
672 434 ABN applications, which led to 28 919 manual refusals
actioned in the ABR for the peer review period (1 April 2013 until
31 March 2016).
II. Entitlement reviews of existing ABN holders to ensure the entity
is entitled to hold their ABN registration – Reviews of active ABN
registrations comprise of both manual and automated programmes of
work. Manual reviews are undertaken by telephone contact with the
ABN holder. The Registrar also engages employers as part of efforts

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Part A: Availability of information– 47

to ensure payers are engaging their workers appropriately; this is
often done with field visits with payer.
The compliance programme actioned during the peer review period
(01/04/2013 to 31/03/2016) resulted in:
- 141 159 manual entitlement reviews leading to 94 851 ABN
cancellations;
- 1 822 170 ABN cancellations as part of a bulk cancellation strat-
egy; and
- 250 252 ABN cancellations for de-registered companies
- 462 928 ABNs cancellations at the request of the ABN holder;
known as Client Initiated Cancellations (CIC).
III. Client Information Reviews (CIR) to ensure the data held on the
register is up to date and accurate, the Registrar uses email and letter
correspondence campaigns to encourage ABN holders to update
their details on the ABR. During the peer review period, there were
1 390 991 CIR contacts including both emails and letters. This cam-
paign resulted in 67 597 updates to the ABR. A total of 1 000 000
letters and emails have been planned for July 2016-June 2017.
112. The ABR displays publicly the ABN status as either “Active”, or
“Cancelled”. Internally, there are more features, including cancelled, refused,
on hold. The terms “active” and “cancelled” relate to the registration status
of an entity in the ABR. Cancelled ABNs remain on the ABR as an historical
record should this information be required after the ABN is cancelled. The
ABR shares active ABNs and information about refused applications with
ASIC when an ABN application also includes an application for a Registered
Business Name processed by ASIC.
113. The count of “active” and “cancelled” entities on the ABR at the end
of the peer review period (31 March 2016) was:

Entity type Active Cancelled Total (by entity)
Company 1 763 229 876 254 2 639 483
Government 12 237 3 191 15 428
Sole trader 3 136 039 2 958 216 6 094 255
Partnership 744 624 546 177 1 290 801
Super fund 588 041 120 755 708 796
Trust 1 009 652 304 939 1 314 591
Total 7 253 822 4 809 532 12 063 354

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48 – Part A: Availability of information

Availability of beneficial ownership information
114. Under the 2016 ToR, beneficial ownership on companies should be
available.
115. Under the Corporations Act, beneficial ownership information is avail-
able in those cases where the legal owners are also the beneficial owners. In other
cases, information on beneficial ownership of companies is only available with:
• banks and other entities regulated under the AML/CTF Act which
have CDD obligations under the AML/CTF legal framework.
Regulated entities have an obligation to monitor their customers in
accordance with their perceived ML/TF risk. Since 2007, Reporting
Entities must identify beneficial owners of most forms of companies
(except incorporated partnerships and associations). ; and
• with listed companies, which are obliged to keep beneficial owner-
ship information under corporate law.
116. Apart from the above-mentioned requirements, there are no
obligations on companies or Designated Non-Financial Businesses and
Professions (DNFBPs) (i.e. trust and corporate service providers (TCSPs),
lawyers) to maintain beneficial ownership information.
117. Although certain information relevant for identification of beneficial
owners is required to be available mainly based on tax and company law
obligations, only financial institutions (and other Reporting Entities under
the AML/CTF Act such as those in the gaming and bullion sector, which are
not relevant for EOIR purposes) are required to identify beneficial owners
of Designated Entities, in line with the standard in all cases. As a conse-
quence, beneficial ownership information on Designated Entities is available
with financial institutions where they hold a bank account. However, these
Designated Entities are not legally required to engage a financial institu-
tion in Australia in all cases. The Australian authorities have indicated that
in practice most Designated Entities would have a bank account with an
Australian bank if they are incorporated in Australia or carry out a business
in Australia. Australia should ensure that beneficial owners of all Designated
Entities are required to be identified in line with the standard.
118. In terms of effectiveness of the legal and regulatory framework in
practice, Australia introduced enhanced CDD obligations under the AML/
CTF Rules which apply as from 1 June 2014, but for which a transitional
period of 18 months was introduced for full compliance. During that period,
and up to the time of the review, only a small portion of the total Reporting
Entity population (36 of a total population of around 14 000 during the review
period) was subject to targeted compliance review by AUSTRAC. Due to the
concentrated nature of Australia’s financial system (which is dominated by

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Part A: Availability of information– 49

the four major banks), the inclusion of these institutions in the sample tested
by AUSTRAC resulted in compliance activities achieving coverage in excess
of 90% of all transactions undertaken in Australia. Subsequent to the review
period, AUSTRAC has confirmed that the key financial institutions have now
taken appropriate steps to assure AUSTRAC all accounts are compliant and
good practices are being adopted by the industry. Due to the short period of
time since the full application of the 2014 Rules, the adequacy of the oversight
in practice could not be fully assessed. Australia should monitor the effec-
tive implementation of the 2014 CDD rules by Reporting Entities, notably by
ensuring that adequate oversight and enforcement activities are carried out.
The analysis regarding the supervision and enforcement of the above-men-
tioned requirements applicable to banks are set out in element A.3 Availability
of beneficial ownership of bank accounts under AML/CTF legislation).
119. Despite the gaps identified in the Australian legal framework, Australia
has received 10 EOI requests for beneficial ownership information of companies
and could provide the requested information in all cases. This was confirmed
by peer input.

Beneficial ownership requirements under corporate law
120. Listed public companies must maintain beneficial ownership infor-
mation under corporate law. There are no obligations under corporate law for
other companies to maintain beneficial ownership information.

Beneficial ownership requirements under tax law
121. All companies (domestic and foreign companies taxable in Australia)
must provide to the ATO the identity of their ultimate holding company in
their annual tax return. The “ultimate holding company” is defined as “the
company in a group of companies that has majority ownership of or control-
ling interests in the other companies in the group.” The supervision and the
enforcement measures applicable and applied during the peer review period
for failure to complete a tax return or for missing information are described
in section A.2 Oversight and enforcement of requirements to maintain
accounting records.

Beneficial ownership requirements under AML/CTF Legislation
122. Banks are required to identify and verify the beneficial owners of all
of its customers, These obligations were strengthened and enhanced with effect
from June 2014 through an increase in the scope of entities and arrangements
subject to identification and verification activities, as well as strengthened
and clarified ongoing and enhanced CDD obligations for Reporting Entities.

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50 – Part A: Availability of information

Prior to this period, banks were required to identify the beneficial ownership
of most forms of companies from December 2007. This means that beneficial
ownership information on companies that have opened a bank account with
an Australian bank should be available with that bank, including beneficial
ownership information collected prior to 2014 (see A.3 Beneficial Ownership
information on bank accounts for more details). I
123. There are no requirements for DNFBPs to maintain beneficial
ownership information over their customers, such that beneficial ownership
information under the AML/CTF rules is only available with banks (and
other reporting entities providing prescribed services under section 6 of the
AML/CTF Act, but which are not relevant for EOIR purposes) under the
conditions mentioned in the above paragraph.
124. The ATO and the AUSTRAC have confirmed that most taxpayers
and entities registered with ASIC have an Australian bank account.
125. From a legal perspective, there is no specific requirement within the
Corporations Act 2001 which mandates the opening or maintenance of an
Australian bank account for Australian registered companies or for registered
foreign companies that carry on business in Australia. However, the regula-
tory framework relating to the business of Australian registered companies
or registered foreign companies that carry on business in Australia contains
requirements to maintain an Australian bank account in certain cases. In
practice, most entities and arrangements operating in Australia will maintain
an Australian bank account as this simplifies their business affairs and assists
in helping them manage certain risks (e.g. forex) and regulatory obligations.
These relevant tax and corporate law requirements pertaining to the mainte-
nance of bank accounts are as follows:
• Section 8AAZLH of the Taxation Administration Act 1953 requires
an entity to nominate their Australian financial institution account in
the approved form to enable the Commissioner to make refunds of
Running Balance Account surpluses or credits, or the Commissioner
may retain the refund.
- This account must be maintained at a branch or office of the
institution that is in Australia.
- The account must be held by either the entity, the entity and some
other entity, the entity’s registered tax agent or BAS agent, or a
legal practitioner as trustee or executor for the entity
- If an entity has not provided the bank account details to which
refunds are to be paid and the Commissioner has not directed that
any such refunds be paid in a different way, the Commissioner
is not obliged to refund any amount to the entity until the entity
provides its bank account details.

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Part A: Availability of information– 51

• An account with an Australian financial institution is a requirement
for businesses registered for Goods and Services Tax (GST).
• The ATO will only pay electronic refunds to an Australian Financial
Institution Account (FIA). Institutions that are listed as eligible for
creating and running an Australian FIA are those that APRA has
endorsed as an Authorised Deposit-taking Institution (ADI).
• Part 7.8 of the Corporations Act 2001 requires a financial services
licensee, which may be an Australian registered company, to ensure
that money that is paid into an account by a client for the provision of
financial services is an account that is an Australian ADI.
• In the case of receivership – Section 421 of the Corporation Act
requires managing controllers of the property of a company to open
and maintain a bank account for with an Australian authorised
deposit institution.
• Section 98(2) of the National Credit Code Protection Act 2009
requires a credit licensee who provides credit services to clients and
receives money from clients on trust must keep a separate trust bank
account with an Australian ADI.
126. The supervision of the AML/CFT obligations applicable to banks are
described in element A.3 Implementation of the 2014 CDD Rules.

Availability of beneficial ownership information in practice
(Peer experience)
127. Closely-held companies constituted over 85% of companies registered
with ATO and account for virtually all of the companies that were the subject
of exchange-of-information requests with ATO for the period 2007-09. For the
period under review, the ATO did a manual search of their database and found
that 10 EOI requests also included beneficial ownership information. Peers
have generally been satisfied with the answer provided by Australia.
128. Five peers indicated they sent a total of ten requests regarding benefi-
cial ownership information on legal entities and arrangements, one of which
concerned the beneficial ownership of a trust (see A.1.4) and the remainder
related to companies. All peers were satisfied with the information received
from the ATO.
129. The ATO indicated that EOI requests for beneficial ownership are
not common, probably due to the fact that Australia is not used as a hold-
ing company jurisdiction. It confirmed that the deficiencies identified in the
legal framework of Australia regarding availability of beneficial ownership
information did not result in hindrance to EOI in practice, which is supported
by peer input.

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52 – Part A: Availability of information

ToR A.1.2: Bearer shares
130. Australian law does not allow for the issuance of bearer shares.

ToR A.1.3: Partnerships
131. In Australia a partnership is a relationship which subsists between
persons carrying on a business in common with a view of profit. Partners
may be individuals, bodies corporate or other partnerships.
132. There are three types of partnerships in Australia: general partner-
ships, limited partnerships and incorporated limited partnerships. A limited
partnership is one where the liability of one or more partners for the debts
and obligations of the business is limited. A limited partnership consists of
one or more general partners (whose liability is unlimited) and one or more
limited partners. Registration confirms each limited partner’s investment
and liability. An incorporated limited partnership is a separate legal entity
and is generally only permitted in venture capital arrangements. Federal
law recognises three types of limited partnerships – venture capital limited
partnerships (VCLPs), Australian venture capital fund of funds (AFOFs)
and venture capital management partnerships (VCMPs), but treats them as
ordinary partnerships for tax purposes. Any other limited partnerships and
incorporated limited partnerships are treated as companies for tax purposes.
133. The 2010 Report (see paras. 81-97) concluded that information on the
identity of the partners in a domestic and foreign partnership were available
due to tax obligations, to the extent it has to file a tax return. This obligation
applied where the partnership operated a business in Australia. Generally,
updates on the changes of partners were required to be reported to the ATO
on an annual basis in the tax return. Each of the partners was also required to
file an annual tax return in respect of their interest in the partnership.
134. Since the 2010 Report there have been no changes to the legal frame-
work. For the oversight enforcement measures applied by the ATO during
the peer review period, see A.1.1 Enforcement and monitoring activities by
the ATO.
135. Regarding the availability of beneficial ownership information,
the AML/CTF Rules requires banks to identify the beneficial owner(s) of
each partner of a partnership (domestic or foreign) that is a customer (see
A.3 Availability of beneficial ownership information). Although certain
information relevant for identification of beneficial owners is required to be
available mainly based on tax and company law obligations, only financial
institutions (and other Reporting Entities under the AML/CTF Act such as
those in the gaming and bullion sector, that are not relevant for EOI pur-
poses) are required to identify beneficial owners of partnerships, in line

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Part A: Availability of information– 53

with the standard in all cases. In addition, domestic partnerships and for-
eign partnerships that have their effective management in Australia are not
legally required to engage a financial institution in Australia in all cases.
These financial institutions are required to identify and verify the beneficial
owners of all of its customers since June 2014 as part of the enhanced CDD
obligations under the AML/CTF Rules and since 2007 for most forms of
companies. Beneficial ownership information is also required to be main-
tained for customers in accordance with a financial institution’s risk-based
ongoing customer due diligence procedures. The enhanced and ongoing
customer due diligence procedures adopted by financial institutions can
apply to all customers based on high ML/TF risk regardless of the obliga-
tions introduced in 2014. This may include the assessment of beneficial owner
information about a customer. Australia should ensure that beneficial owners
of partnerships are required to be identified in line with the standard.
136. For the period now under review (April 2013-March 2016), the ATO
confirmed that they received 16 requests on partnerships and they could pro-
vide the identity of the partners in all cases. The ATO also indicated that, as
a trend, the number of partnerships is decreasing, since business in Australia
is more commonly carried out through a company, rather than partnerships.

ToR A.1.4: Trusts
137. As Australia is a common law jurisdiction, the concept of a trust is
part of Australian law. A trust is an equitable obligation binding a person
(a trustee) to deal with property over which he or she has control (the trust
property) for the benefit of persons (beneficiaries) of whom he or she may be
one, and any one of whom may enforce the obligation. Federal tax law has
jurisdiction over the taxation of trusts. The 2010 Report found that identity
information on trusts was available under the tax law requirements and the
submission of tax returns, which must stipulate who the trustee(s) and the
beneficiaries are and the share of income for each beneficiary.
138. As described below, Australia has some identity information on
trusts under the tax laws and common law; that is the identity of the trustee
and the direct beneficiaries in certain cases. However, the scope of these
tax law and fiduciary obligations does not cover the scope of the beneficial
ownership requirements under the 2016 Terms of Reference in all cases; that
is to say the natural person exercising the ultimate effective control over
the trust where a chain of ownership exists. The identification of beneficial
owners of trusts is also required based on AML/CFT obligations since June
2014. Although financial institutions (and other Reporting Entities under
the AML/CTF Act such as those in the gaming and bullion sector, which
are not relevant for EOI purposes) must identify beneficial owners of trusts,
acting as a trustee does not in itself trigger such AML/CFT obligations. The

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54 – Part A: Availability of information

identification of beneficial owners is not required in respect of all express
trusts administered in Australia or in respect of which a trustee is resident in
Australia unless the trustee is provided a service (as prescribed in section 6
of the AML/CTF Act) by a Reporting Entity. Trusts not subject to AML/CTF
requirements would be limited to those which do not receive services from an
Australian licenced financial institution. At a practical level, statistics are not
available as to the number of such trusts, however the Australian Authorities
indicated that they do not expect this would be a significant portion of the
population. This would typically be the case of a trust having a bank account
in Australia. Australia should ensure that information on beneficial owner-
ship information in respect of all express trusts administered in Australia or
with a trustee resident in Australia is available as required under the standard.

Legal Requirements
139. No all trusts governed by Australian law have to be registered. Under
Australian law, there is no legislative federal obligation on the trustee to
obtain and hold adequate, accurate and current information on the identity of
settlors, trustees, protectors (if any) and beneficiaries of trusts, including any
natural person who exercises ultimate effective control over a trust.
140. However, specific requirements apply to managed investment
schemes (unit trusts offered to the general public), which are regulated under
the Corporations Act and are required to be registered with ASIC. Registered
Managed Investment Schemes must keep a register of members, including
name and address, interest held by each member and amounts paid on the
interests (section 168 and 169 of the Corporations Act 2001).

Fiduciary duties under the Common Law
141. Under the common law, and in case of a discretionary trust, the
trustee’s duties include a duty to become acquainted with 8 and to carry out
the terms 9 of the trust. The trustee is required to exercise its powers with due
consideration for the purpose for which it was conferred and, before making
a decision, ensure that he is informed of matters which are relevant to his
decision. The trustee also has the duty to act impartially between beneficiar-
ies, particularly in the matters of distribution of capital and income, unless
otherwise authorised by the trust. The trustee’s duty is to act in good faith,
responsibly and reasonably. 10

8. Hallows v Lloyd (1888) 39 Ch D 686 at 691),.
9. AG v Downing (1767)Wilm 1 at 23.
10. Scott v National Trust for Places of Historic Interest or Natural Beauty[1998]2
All ER 705 per Robert Walker J at 717.

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Part A: Availability of information– 55

142. The above-mentioned duties include the obligation to know who the
beneficiaries are. However, although the beneficiaries of a trust must be iden-
tified with sufficient certainty for the trust to be validly constituted, when a
beneficiary is not a natural person the trustee has no obligation at law (and
indeed may not in fact be able to trace through a chain of beneficial interests)
to identify the ultimate recipient of a distribution it makes to a non-natural
person beneficiary.

Tax law requirements
143. Any trust with a trustee resident in Australia and any foreign trusts
receiving income from Australia must file an Australian tax return (unless
exempted by the Commissioner from this requirement). In the tax return, the
trustee must disclose to the Commissioner the beneficiaries’ entitlements
to trust income. There are penalties which apply if a trustee fails to lodge
a return as required, or makes false or misleading statements in a return.
Registration is also required with the Commissioner of Taxation in the case
of charitable trusts and when income is derived by the trust.
144. The trust needs to register the trust or partnership in the tax system
by applying for a Tax File Number (TFN) and, if relevant, an Australian
Business Number (ABN). The description of the oversight and enforcement
activities carried out by the ABR is set out in section A.1.1 Enforcement and
Monitoring Activities by the ATO.
145. From a tax perspective, trusts are generally treated as transparent,
such that income derived from a trust is taxed at beneficiary level in case of a
distribution, or at the level of the trustee. The ATO has the identity informa-
tion of the trustee in all cases, and the identity of the beneficiaries in case of
distributions.
146. The 2010 Report concluded that the extensive tax filing and anti-
money laundering requirements in Australia ensure the availability of
information on trusts. A total of 838 126 trust tax returns were lodged for
the 2012-13 tax year, 849 027 for the 2013-14 tax year and 823 448 to date
in respect of the 2014-15 tax year. There were no requests for information
on trusts during the period 2007-09. In the current review period, Australia
received 9 EOI requests regarding trusts, to which Australia responded
satisfactorily.

AML/CTF Law requirements
147. Generally, there is no legal requirement for involvement of a service
provider or a financial institution in the creation or the running of the trust
arrangement. Professionals may be engaged to assist with setting up and

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56 – Part A: Availability of information

running the trust, for example, a legal practitioner can assist with the prepa-
ration and maintenance of the trust deed, and an accountant can assist with
the preparation of the trust returns. However, at this time no identification or
CDD obligations apply to these service providers under the Australian AML/
CTF Act.
148. Since 2007, identity information has been available if the trustee
opens a bank account in Australia on behalf of the trust. Since 1 June 2014,
beneficial ownership information is also available with the Australian banks,
being Reporting Entities under the AML/CTF Act. These are required to
carry out KYC procedures for new services to identify the settlor(s), the
trustee(s), the beneficiary(ies) and the protector(s) (if any). All bank accounts
(including trust accounts opened prior to 1 June 2014), are subject to ongoing
CDD which back-captures beneficial ownership information. Enhanced CDD
supplements this process and is undertaken on a risk basis.
149. Trust Company and Service Providers are not subject to obligations
under the AML/CTF Act and therefore would not be a reporting entity sub-
ject to the beneficial ownership requirements.
150. Two peers indicated that they each sent one request for beneficial
ownership of trusts during the peer review period. In both cases, the peers
were satisfied with the quality of the beneficial ownership information
received.

ToR A.1.5: Foundations
151. Australian law does not allow for the creation of foundations.

Other relevant entities and arrangements
152. The 2010 Report identified a number of entities other than companies,
trusts and partnerships as relevant for EOIR purposes (see paragraphs 127
to 129 of the 2010 Report). These are building societies, credit unions and
friendly societies. The 2010 Report stated that “there are no indications that
these are relevant for exchange of information purposes.” The same AML/
CFT rules apply to these entities. The ATO’s powers to obtain information
would apply should a request for exchange of information be made.

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A.2. Accounting records
Jurisdictions should ensure that reliable accounting records are kept for all
relevant entities and arrangements.

153. The 2010 Report concluded that all entities and arrangements were
required to maintain adequate accounting records, including underlying
documentation for at least 5 to 7 years depending on whether the obligations
were under commercial law or tax law (see 2010 Report, paras. 131-156).
Element A.2 was determined to be in place and Compliant and no recom-
mendations were made. The requirements to maintain accounting records
were found in both the company law, common law (with respect to trusts)
and tax law.
154. There were no issues with respect to the availability of account-
ing information in practice during the period 2007-09. The supervision by
the ASIC and the ATO regarding the maintenance of accounting records is
adequate and ensures that accounting information is available. During the
current review period Australia received 596 EOI requests and 50 of these
related to accounting information (approximately 8%). Peers were satis-
fied with the accounting information provided by Australia during the Peer
Review Period.
155. The new table of determinations and ratings is as follows:

Determination on the Legal and Regulatory EOIR Framework
The element is in place.

Practical Implementation of the EOIR Standard
Rating of element A.2 COMPLIANT

ToR A.2.1: General requirements
156. There are general requirements under company law and under tax law.

Requirements under Company, Partnership and Trust laws
157. The 2010 Report noted that financial records that correctly record
and explain a company’s transactions, financial position and performance
are required to be kept; and would enable true and fair financial statements
to be prepared and audited. The document retention period under the com-
pany law is seven years. A failure to keep records under section 286 of the
Corporations Act is an offence of strict liability. An incorporated limited

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58 – Part A: Availability of information

partnership is also required to keep records for seven years under Australian
corporations’ legislation.
158. Section 319 of the Corporations Act requires Australian companies,
registered schemes or disclosing entities that must prepare or obtain a report
for a financial year to lodge the report with ASIC within four months after
the end of the financial year. Section 601CK of the Corporations Act requires
registered foreign companies to lodge balance sheets, profit and loss state-
ments, cash flow statements and other documents with ASIC at least once
every calendar year and at intervals of not more than 15 months.
159. For wound-up companies, the liquidator must keep the company’s
records that were relevant to the liquidation process, and records of the
liquidator that are relevant to affairs of the company at or subsequent to the
commencement of the winding up of the company for a period of 5 years
unless approval for early destruction is given by a court or ASIC (Schedule 2
section 70-35 Corporations Act). For liquidated companies, the company’s
directors must keep the companies books and records for three years (unless
they are required to be kept by a liquidator). In addition, all companies to be
wound up must have a liquidator appointed initially. If the liquidator resigns,
a replacement is appointed by ASIC, the Court or the creditors or members.
Pursuant to law which commenced 1 March 2017, if books are transferred
to ASIC when a person ceases to be a liquidator, and ASIC is not other-
wise required to transfer the books, ASIC must retain the books for 2 years
(Schedule 2 section 70-31(8) Corporations Act).
160. There are no particular record-keeping requirements for partnerships
under Australian partnership law. However partners must make full disclo-
sure to one another on all matters affecting the partnership. The Partnership
Acts under each of Australia’s States and Territories give disclosure of
accounting information between the partners the force of law (see for exam-
ple section 28 of the NSW Partnership Act1892).
161. In the case of trusts, the 2010 Report noted that under trust law,
the trustee must keep an account of receipts and payments of trust monies
and this would usually be supported by documentary evidence. Australian
common law places a requirement on all trustees to maintain records, if they
are to properly discharge their trustee duties.

Record keeping requirements (including liquidated companies) under
Company law.
162. Where a company has been wound up the liquidator must keep the
company’s records including ownership information for a period of 5 years,
unless approval for early destruction is given by a court or ASIC (section
Schedule 2 section 70-35 Corporations Act).

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163. A liquidator must be an individual (a company cannot be a liquidator)
and must be registered with ASIC. Liquidators may be deregistered. Once an
administration is finalised, a liquidator has an ongoing obligation to retain
the books (new law Schedule 2, section 70-35 Corporations Act). Liquidators
are registered on a separate register to companies called the Register of
Liquidators. A liquidator must be an individual, not a company, and comply
with the Insolvency Practice Rules and the conditions of their registration,
if any. Registration may be cancelled if the person voluntarily cancels, the
person becomes insolvent under administration, the person dies, is convicted
of an offence involving fraud or dishonesty, is disqualified, or ceases to
have adequate insurances (Corporations Act Schedule 2, sections 40-20 and
40-25).
164. A company may be de-registered with ASIC on the following
grounds (see A.1.1 Record keeping requirements (including liquidated com-
panies) under company law):
• Voluntary de-registration, subject to specific condition (in which
case, no mandatory liquidator is appointed);
• Winding up a solvent company (in which case a mandatory liquidator
is appointed);
• Winding up an insolvent company (in which case a mandatory liqui-
dator is appointed); and
• ASIC-initiated de-registration (in which case, no mandatory liquida-
tor is appointed).
165. When a company is de-registered with ASIC, any property still
owned by the company (excluding trust property, if the company is a corpo-
rate trustee) is vested in ASIC. Former officeholders lose any right to deal in
the property that has been vested.
166. In case the company is wound-up, it is mandatory for the directors of
the company to appoint a liquidator. The liquidator will be subject to record-
keeping requirements for at least 5 years after the liquidation of the company.
167. If the company is de-registered due to granted voluntary de-registra-
tion or ASIC-initiated de-registration, no liquidator needs to be appointed.
However, the company’s directors must keep the company’s books and records
for three years after de-registration (Section 601AD(5) of the Corporations
Act). For the year ending 30 June 2016, ASIC deregistered 118 422 companies
for either voluntary applications to deregister a company or failure to pay
the annual review fee. In these cases where no liquidator is appointed, the
record-keeping requirements of three years by the directors of the company
are not in line with the standards which require a five-year retention period.
However, the ASIC confirmed that the deregistration of companies due to

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60 – Part A: Availability of information

failure of fee payments is only initiated after a minimum period of 12 months
from the due date (by law). ASIC indicated that most of the deregistrations
thus far were carried out because the companies had not paid their annual
fees for at least two years. Accordingly, although the gap is limited, Australia
should ensure that accounting information for the de-registered companies is
kept for a minimum period of 5 years in all cases.

Requirements under tax law
168. The tax law requires every taxpayer (including a company, partner-
ship or trust) carrying on a business to keep records that record and explain
all transactions and other acts engaged in by the taxpayer that are relevant for
tax purposes (s. 262 A ITAA 1936).
169. Australian resident trustees of foreign trusts which do not derive
Australian-source income and do not have Australian-resident beneficiaries
are not required to file a tax return in Australia for the account of the foreign
trusts. There is no other requirement to maintain accounting records for the
foreign trusts under the Corporation Act or the AML legislation, the latter
coverage of which does not apply to DNFPBs. However, the Australian-
resident trustee is subject to fiduciary duties under the common law. Notably,
Australian-resident trustees are obliged to keep records of the dealings of the
trust (being foreign or Australian), which must be produced to the benefi-
ciaries when called for (Spellson v George (1987) 11 NSWLR 300 at 315-6).
Trustees are also obliged to allow beneficiaries to inspect trust accounts and
documents (Byrnes v Kendle (2011) 243 CLR 253 at 270-1 (Byrnes v Kendle
[2011] HCA 26). Finally, accounts must be kept up to date and be accurate
(Hancock v Rinehart [2015] NSWSC 646 at [339]).
170. The document retention period under tax law is 5 years from the date
on which the record was prepared or obtained or from the time the relevant
transaction or act was completed, whichever is the later. This obligation
applies to all taxpayers. The penalty for failure to maintain such records is
20 penalty units (currently, 20 units equals AUD 3 600). This penalty may be
remitted (partially or fully) if the taxpayer is considered to be acting in good
faith. However, if there is no attempt to keep records, or the taxpayer deliber-
ately destroys them, there will likely be no remission of penalty.
171. There is no requirement that accounting records be kept in Australia
but a taxpayer must be able to produce those records as and when required
by the Commissioner of Taxation. The Australian authorities indicated that
no issue ever arose in respect of accounting records being held outside of
Australia.

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ToR A.2.2: Underlying documentation
172. Company law, trust law (including the common law) and tax law
require that underlying documents be maintained to support the account-
ing records. In respect of partnerships, the Partnership Acts under each of
Australia’s States and Territories give disclosure of accounting information
(including underlying documentation) between the partners the force of law
(see for example section 28 of the NSW Partnership Act 1892).

Oversight and enforcement of requirements to maintain accounting
records
173. The 2010 Report did not raise any issue regarding the oversight
and enforcement measures carried out by ASIC and the ATO to maintain
accounting information. During the peer review period, the oversight activi-
ties and enforcement measures carried out by ATO were adequate to ensure
effective compliance with accounting record-keeping requirements under
tax law.

Oversight activities carried out by the ASIC
174. The oversight and enforcement activities carried out by the ASIC as
described in section A.1.1 Enforcement and monitoring activities by ASIC,
which reviews whether the required accounting documents have been filed,
have increased at the end of the peer review period with a struck-off company
campaign and the imposition of penalties for late registration of compulsory
documents. Together with the ATO, which carried out an active oversight pro-
gramme (see below), the oversight and enforcement activities carried out by
the ASIC appear adequate to ensure availability of accounting information.

Oversight activities carried out by the ATO
175. One of the main oversight activities carried out by the ATO is ensur-
ing compliance with the obligation to file tax returns in a timely manner. The
compliance rate of filing income tax returns on time has improved overall
since 2010. By way of example, the income tax returns lodged by large tax-
payers 11 showed an improvement of more than 10 percentage points since
2010, as illustrated in the table on the next page.

11. A taxpayer is defined as a “large taxpayer” if the total business income of the
taxpayer is AUD 100 million or more in an income year. If the taxpayer has busi-
ness income of AUD 250 million or more in an income year, the taxpayer is a
“very large taxpayer”.

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62 – Part A: Availability of information

Income tax returns lodged on time
2010-11 2011-12 2012-13 2013-14 2014-15
Large taxpayers 69.7% 76.7% 80.3% 80.5% 79.3%

176. The 2015-16 statistics shows the percentage of large taxpayers to the
total number of taxpayers is 0.01838%.The percentage has slightly increased
over the last 5 years (0.01812% in 2013-14 and 0.01777% in 2012-13).
177. As accounting records are the data on which tax returns are based,
ensuring that taxpayers comply with their tax return obligations is critical to
determining whether there may have been a failure to comply with account-
ing record requirements, at the beginning of an audit process.
178. In this respect, the ATO is active in applying enforcement measures
on late lodgement of tax returns. Failure to Lodge penalties for income tax
returns are applied when an obligation is outstanding as part of the corre-
spondence and telephony strategies. It can also be imposed automatically by
the system when a return is lodged late providing the client previously lodged
late and had received a warning letter.
179. In 2015-16, the following penalties were imposed for outstanding or
late income tax returns:

Statistics on fines imposed
Current amount (amount
of FTL less remissions and Original amount (amount of
2015-16 cancellations) FTL originally imposed)
Imposed automatically by the
AUD 50 487 454 AUD 75 795 310
system following late lodgement
Imposed via a telephony strategy AUD 4 192 383 AUD 6 294 136
Imposed via bulk
AUD 184 865 221 AUD 250 494 040
correspondence strategy
Total AUD 239 545 058 AUD 332 583 486

180. The ATO carries out a strong audit programme based on transpar-
ency, risk and behaviour of taxpayer. Compliance liabilities raised and
collected as a result of compliance audits, reviews and other checks have
risen during the peer review period.

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Part A: Availability of information– 63

Results
Performance measures 2013-14 2014-15 2015-16
Number of compliance audits, reviews and 5.3 million 4.7 million 3.8 million
other checks undertaken
Value of compliance liabilities raised* and AUD 15.2 billion* AUD 13.5 billion* AUD 13.8 billion*
collected** as a result of compliance audits, AUD 9.4 billion** AUD 9.6 billion** AUD 9.6 billion**
reviews and other checks
Value of penalties and interest collected AUD 3.0 billion AUD 2.4 billion AUD 2.4 billion

The above figures are as reported in the ATO 2015/16 Annual report: https://annualreport.
ato.gov.au/04-appendixes/appendix-13-reporting-on-activities-outputs/revenue-assurance.

181. Each year the ATO reports on prosecution outcomes in the Annual
Report. The ATO prosecutes a range of matters relating to tax administra-
tion offences itself, including non-compliance with lodgement obligations,
making false or misleading claims on ATO forms, keeping false accounting
records and failing to respond to questions when required to do so.
182. In 2015-16, the ATO prosecuted over 1 300 individuals and 400 com-
panies. Of those cases, around 880 related to GST, and 1 030 to income
tax. Fines, costs and reparation orders totalling over USD 11.6 million were
imposed.
183. In 2014-15, the ATO prosecuted over 1 200 individuals and 300 com-
panies. Of those cases, around 600 related to GST, 1 400 to income tax and
one related to superannuation. Fines, costs and reparation orders totalling
over USD 9.8 million were imposed.
184. In 2013-14, the ATO prosecuted 1 400 individuals and 330 compa-
nies. Of those cases, 900 matters related to GST, 800 related to income tax
and 2 related to superannuation. Fines, costs and reparation orders totalling
more than USD 13.3 million were imposed.

Availability of accounting information in practice
185. No issues arose during the period 2007-09 with respect to the avail-
ability of accounting information. In the current review period Australia
received a total of 596 EOI requests, 50 of which deal with accounting infor-
mation. Out of 20 peer inputs received, more than 10 peers indicated that they
requested accounting information. They also confirmed that the requested
accounting information was provided in all cases and that the quality of the
data exchanged was good.

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A.3. Banking information
Banking information and beneficial ownership information should be available
for all account-holders.

186. The 2010 Report concluded that element A.3 was in place and
Compliant. All requests for banking information had been answered. During
the period under review, all EOI requests regarding banking information
were adequately answered by Australia. In addition, the bank supervision by
AUSTRAC remained adequate in respect of record-keeping requirements by
banks.
187. However, the EOIR standard since 2016 requires that beneficial own-
ership information in respect of account holders be available, the requirement
of which was not assessed in the 2010 Report. As mentioned in element A.1,
since 2007, Reporting Entities must identify beneficial owners of most
forms of companies (except incorporated partnerships and associations).
In addition, Australia introduced CDD requirements (2014 CDD Rules) on
Reporting Entities (including banks) with effect from 1 June 2014 for all
the customers (including trust arrangements). Reporting Entities under the
Policy (Additional Customer Due Diligence Requirements) Principles 2014,
the Minister for Justice approved of a transition period to enable Reporting
Entities under the AML/CTF Act to implement a transition plan to meet these
new requirements and achieve full compliance with the relevant provisions by
1 January 2016. The Policy Principles outline the obligations and expectations
of Reporting Entities during this transition period.
188. Banks are required to identify and verify the beneficial owners of all
of its customers following the enhancements to the AML/CTF Rules which
took effect from 1 June 2014. These AML/CTF Rules apply notably to bank
accounts opened since 1 June 2014. Prior to this period, banks were required
to identify the beneficial ownership of most forms of companies. In addition,
beneficial ownership information on bank accounts opened prior to 1 June
2014 with respect to entities (incorporated partnerships and associations) and
trusts which were not clearly subject to beneficial ownership requirement
prior to 1 June 2014, is also subject to ongoing and enhanced customer due
diligence obligations. As a consequence, beneficial ownership information
on bank accounts of all Designated Entities (see A.1 for definition) and trusts
should be available in Australia in line with the standard.
189. Introduced business obligations set out in the AML/CTF Act and
Rules do not require Reporting Entities do not explicitly state that the
Reporting Entity relying on a third party remains ultimately responsible for
CDD measures. Australia should ensure that accurate and update beneficial
ownership information on bank account holders is available in all cases.

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190. Finally, given the rather recent introduction of the 2014 CDD Rules,
this report recommends that Australia continues to monitor the implementa-
tion of the 2014 CDD Rules.
191. Australia committed to Automatic Exchange of Information on
Financial Accounts under the Common Reporting Standard (CRS) with first
exchanges in 2018. Given that the implementation legislation will have effect
from 1 July 2017, the CRS reporting obligations did not alter the deficiencies
identified above during the period under review (1 April 2013 until 31 March
2016). Nevertheless, from 1 July 2017, the implementation of the CRS by
Australian Reporting Financial Entities (RFIs) will add to the CDD require-
ments carried out by the banks under the 2014 AML/CTF Rules (see A.3.1.
Implementation of the Common Reporting Standard in Australia).
192. In considering the rating of element A.3 the following aspects should
be considered:
• Element A.3 covers a variety of information, and not only that of
beneficial ownership of bank accounts. Australia has a large database
of financial transaction reports available which records all transac-
tions reported to AUSTRAC by Australian banks and other regulated
entities. This database is accessible to the ATO and provides up-to-
date information. Furthermore, the ATO is empowered under the
AML/CTF Act to issue notices to a Reporting Entity or any other
person requesting information specified in the notice concerning a
transaction report submitted to AUSTRAC, including information
and documentation on the beneficial ownership and control of a
customer.
• Australia could answer all the EOI requests received regarding bank-
ing information.
• Regarding the gap identified in respect of the application of the 2014
CDD Rules (first recommendation on the legal and regulatory EOIR
framework), it is clear that the number of bank accounts that have not
been subject to CDD will be reduced over time due to the ongoing
due diligence requirements (see further paragraph 55).
• Regarding the deficiencies identified on the introduced business
rules, AUSTRAC has indicated that most introduced business is
carried out by the subsidiaries of the four major Australian domestic
banks.
193. In light of the above considerations, element A.3 is determined to be
in place, but certain aspects of the legal implementation of the element need
improvement and rated largely compliant.
194. The new table of determinations and ratings is as follows:

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Determination on the Legal and Regulatory EOIR Framework
The element is in place, but certain aspects of the legal implementation of the
element need improvement.
Factors underlying
recommendations Recommendation(s)
Deficiencies Identified Introduced business Australia should ensure that
in the Legal and obligations set out in the AML/ accurate and update beneficial
Regulatory EOIR CTF Rules do not explicitly ownership information on bank
Framework state that the banks relying on account holders is available in
a third party remains ultimately all cases.
responsible for CDD measures
performed on their customers,
and notably beneficial
ownership information.

Practical Implementation of the EOIR Standard
Factors underlying
recommendations Recommendation(s)
Deficiencies Identified Australia introduced Australia should monitor the
in the Implementation enhancements to CDD effective implementation of the
of EOI in Practice obligations, which came 2014 CDD rules by Reporting
into effect on 1 June 2014, Entities, notably by ensuring
accompanied by a transitional that adequate oversight and
period of 18 months to enable enforcement activities are
Reporting Entities to achieve carried out.
full compliance. During that
period, and up to the end
of the review period, only a
small portion of the Reporting
Entities has been monitored
regarding the implementation
of the 2014 CDD rules. In
addition, due to the short
period of time since the full
application of the 2014 Rules,
the adequacy of the oversight
and enforcement in practice
could not be fully assessed.
Rating of element A.3 LARGELY COMPLIANT

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ToR A.3.1: Record-keeping requirements
195. The 2010 Report found Australia fully compliant with the record-
keeping requirements applicable for banks under the 2010 Terms of
Reference. In particular, paragraphs 157 to 160 noted that Australian AML/
CFT Act requires that Reporting Entities retain documents and other records
in relation to services and transactions. Customer due diligence records must
be kept for the life of the customer relationship and for seven years after the
Reporting Entity ceases to provide Designated Services to the customer.
If a Reporting Entity creates a transaction record that relates to providing
a Designated Service to a customer, the entity must retain the transaction
record (or a copy or extract of the record) for seven years after making the
record.
196. Under section 107 of the AML/CTF Act obliges a Reporting Entity
to retain a record (or copy or extract of a record) for 7 years after the record
was made (see s107(2)). According to Australia’s interpretation of the AML/
CTF Act, it is irrelevant that the Reporting Entity ceased to be a Reporting
Entity within the 7-year retention period; for example due to its liquidation.
197. As mentioned in the 2010 Report, the penalties for failure to maintain
these records are sufficient to ensure compliance with the rules – namely up
to AUD 18 million for body corporates, and AUD 3.6 million for any other
persons. The AML/CTF Act also contains a number of criminal offences
which apply in case of false or misleading information and false and mislead-
ing documents. The penalty is 10 years imprisonment or 10 000 penalty units
(USD 1.8 million fine). AUSTRAC confirmed that there have not been any
penalties imposed under the record-keeping obligations of the AML/CTF Act
during the peer review period.

ToR A.3.1: Beneficial ownership information on account holders
198. This section focuses on the newly introduced requirement regarding
the availability of beneficial ownership information on bank account hold-
ers. The 2016 ToR specifically require that beneficial ownership information
be available in respect of all account holders. Reporting Entities Under the
AML/CTF Act, all Reporting Entities (including banks) are required to
undertake customer due diligence on all account-holders and any other cus-
tomer receiving a Designated Service.
199. Although Reporting Entities had a clear obligation to identify and
verify the beneficial ownership and control of most companies (see para-
graph 202 for the definition) since the commencement of the AML/CTF
Rules on 12 December 2007, in order to address identified deficiencies in
Australia’s compliance with the 2012 FATF standards, enhanced AML/CTF

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Rules came into force effective from June 2014. These reforms to the CDD
obligations in the AML/CFT rules included:
• expanding the scope of the beneficial ownership definition
• creating a general obligation to identify and verify the identity of
beneficial owners (where appropriate);
• requiring Reporting Entities to take a range of enhanced CDD meas-
ures in high-risk situations;
• requiring Reporting Entities to perform enhanced CDD in relation to
foreign politically exposed persons (PEPs), and
• changes to requirements to collect, update and verify CDD informa-
tion, including in high-risk situations.
200. These enhanced CDD obligations are applicable to bank accounts
opened prior to 1 June 2014 where the bank conducts ongoing customer due
diligence on the account-holder, the account falls within a high-risk category
set out in the Reporting Entities’ AML/CTF programme or is subject to a
suspicion of ML/TF.
201. The 2014 enhanced CDD Rules in relation to settlors, beneficial
owners and politically exposed persons only apply to persons who became
customers of a Reporting Entity after 1 June 2014 and any customer who is
subject to the ongoing customer due diligence and enhanced customer due
diligence obligations under Chapter 15 of the AML/CTF Rules.
202. Under the Policy (Additional Customer Due Diligence Requirements)
Principles 2014, the Minister for Justice approved of a transition period to
enable Reporting Entities under the AML/CTF Act to implement a transition
plan to meet these enhanced requirements and achieve full compliance with
the relevant provisions by 1 January 2016. The Policy Principles outline the
obligations and expectations of Reporting Entities during this transition period.
203. This section will analyse (i) the legal requirements applicable to
banks in respect of beneficial ownership information on bank accounts,
(ii) the oversight and enforcement activities carried out by AUSTRAC and
(iii) the availability of beneficial ownership information on bank accounts
in practice.

Legal requirements on beneficial ownership information on account
holders
204. The following aspects of the 2014 CDD Rules are explained below:
(i) the scope of the 2014 CDD Rules, (ii) the definition of beneficial owner,
(iii) the CDD requirements and (iv) the introduced business rules.

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Scope of the 2014 CDD Rules
205. The AML/CTF Act mainly places obligations on the financial insti-
tutions. 12 In addition, Reporting Entities include bullion businesses, and
gaming providers (including casinos, bookmaking and wagering businesses,
and electronic gaming machine venues (including pubs and clubs).
206. The 2014 CDD Rules replaced Chapter 4 of the AML/CTF Act with
a new Chapter 4 introducing the obligation for Reporting Entities to obtain
beneficial ownership information from customers opening an account from
1 June 2014. New Section 4.1.2 specifically provides that “the new Chapter 4
does not apply to (i) a pre commencement customer (i.e. a customer having
opened an account before 1 June 2014) or a customer who receives a
Designated Service covered by item 40, 42 or 44 of table 1 in section 6 of the
AML/CTF Act (i.e. pension and retirement savings accounts under certain
conditions)”.
207. More specifically, section 4.1.6 provides that Reporting Entities are
only required to apply the beneficial ownership requirements (part 4.12)
to new customers after 1 June 2014. However, chapter 15 which deals with
ongoing due diligence does not exclude pre-commencement accounts (those
opened before 1 June 2014) from the scope of application. AUSTRAC con-
firmed that it interprets the 2014 CDD Rules such that ongoing customer due
diligence applies to all customer accounts regardless of whether they have
been opened before or after 1 June 2014. These obligations require reporting
entities to have appropriate risk-based systems and controls to enable them
to determine in what circumstances further CDD information or beneficial
owner information should be collected or verified in respect of all of its cus-
tomers or beneficial owners of customers to enable the review and update
of CDD information and beneficial owner information for ongoing CDD
purposes (paragraph 15.2 of the AML/CTF Rules). Reporting entities are
also required to undertake reasonable measures to keep, update and review
the documents, data or information collected during the CDD (particularly
in relation to high risk customers) and the beneficial owner identification
processes (paragraph 15.3 of the AML/CTF Rules). The ongoing CDD
requirements create a de facto obligation for reporting entities to monitor
changes in ownership. 208.Prior to the introduction of the enhanced 2014
CDD Rules, all Reporting Entities had an obligation to identify the beneficial

12. These include authorised deposit-taking institutions, banks, building societies,
credit unions, loan, lease and hire-purchase businesses, factoring and forfaiting
businesses, stored value card, travellers cheque, money order and postal order
issuers, remitters, securities and derivatives markets/investment services, super-
annuation and pension providers, life insurance services, currency exchange
businesses, and financial planners.

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owners of most companies since the commencement of the AML/CTF Rules
on 12 December 2007. 13 These companies were:
• a proprietary or private company (other than a proprietary com-
pany that is licensed and subject to the regulatory oversight of a
Commonwealth, State and Territory statutory regulator in relation to
its activities as a company);
• a foreign public company;
• a domestic unlisted public company; and
• a company that is licensed and subject to the regulatory oversight of
a Commonwealth, State or Territory statutory regulator in relation to
its activities as a company.
208. At a high level, prior to the amendments made in June 2014, the
AML/CTF Rules required Reporting Entities to adopt risk-based processes
to identify and verify each beneficial owner (if any) of:
• a proprietary or private company (other than a proprietary company that
is licensed and subject to the regulatory oversight of a Commonwealth,
State and Territory statutory regulator in relation to its activities as a
company)
• a foreign public company
• a domestic unlisted public company
• a company that is licensed and subject to the regulatory oversight of
a Commonwealth, State or Territory statutory regulator in relation to
its activities as a company.
209. Reporting Entities were also required to have risk-based processes
to identify and verify the beneficial owners of foreign government entities.

Definition of beneficial owner
210. Under the 2014 CDD Rules, the beneficial owner is defined as follows:
1. [beneficial owner] of a person who is a Reporting Entity, means an indi-
vidual who owns or controls (directly or indirectly) the Reporting Entity;
2. [beneficial owner] of a person who is a customer of a Reporting
Entity, means an individual who ultimately owns or controls (directly
or indirectly) the customer;

13. The AML/CTF Rules Instrument which was in force from December 2007 until
it was amended to reflect the enhanced CDD requirements in June 2014 is avail-
able via the following link: https://www.legislation.gov.au/Details/F2007C00537.

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3. In this definition: control includes control as a result of, or by means
of, trusts, agreements, arrangements, understandings and practices,
whether or not having legal or equitable force and whether or not
based on legal or equitable rights, and includes exercising control
through the capacity to determine decisions about financial and oper-
ating policies; and
4. In this definition: owns means ownership (either directly or indi-
rectly) of 25% or more of a person.
211. As mentioned in the Explanatory Statements to the 2014 CDD Rules,
the definition of beneficial ownership was amended to conform to the FATF
definition of beneficial owner. AUSTRAC’s guidelines indicate that if a
Reporting Entity is unable to determine the beneficial owner of a customer,
e.g. where no person owns 25% or more of the customer or where there is
not an individual exercising control of the customer; the Reporting Entity is
required to identify and take reasonable steps to verify an alternative indi-
vidual (also refer to paragraph 4.12.9 of the AML/CTF Rules). This guideline
is not a regulatory instrument and reporting entities and other stakeholders
must always refer to the AML/CTF Act, Rules and regulations to clarify an
obligation. This guideline provides explanatory and practical information
regarding the legislative obligation that exists in AML/CTF Rules 4.12(9).
AUSTRAC’s regulatory responsibilities are the means through which the
application by individual reporting entities with the requirement to identify
the beneficial owner of the customer is being applied.
212. The determination of an alternative individual is as follows:
1. If the customer is a company or a partnership, a Reporting Entity
should attempt to identify an alternative individual in the following
order:
a. an individual who can exercise 25% or more of the voting rights,
including the power to veto. The power to exercise voting rights
may be direct or indirect, including where the individual is
entrusted with, or has significant influence over, the exercise of
the voting rights; or
b. if the Reporting Entity cannot identify the above individual:, any
individual who holds the position of senior managing official (or
equivalent).
2. If the customer is a trust, the Reporting Entity should attempt to
identify any individual who holds the power to appoint or remove the
trustees of the trust. This role is usually described as the appointor,
but may also be called the “custodian” or “principal”, and should be
noted in the trust deed.

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213. In its Guidelines, AUSTRAC indicates that to identify the beneficial
owner of a customer, a Reporting Entity should establish and understand the
ownership or control structure of the customer.

Customer identification and beneficial ownership requirements
214. A Reporting Entity must have an AML/CTF programme which
includes appropriate systems and controls for the Reporting Entity to deter-
mine the beneficial owner of each customer. Either before the provision of
a Designated Service to the customer, or as soon as practicable after the
Designated Service has been provided, the Reporting Entity must collect
from the customer and take reasonable measures to verify:
• each beneficial owner’s full name, and
• the beneficial owner’s date of birth, or
• the beneficial owner’s full residential address.
215. Verification must be based on reliable and independent documenta-
tion, reliable and independent electronic data, or a combination of both.
216. The 2014 CDD Rules introduces the following beneficial ownership
identification rules:
• Companies. In addition to identification information and KYC pro-
cedures set out in Chapter 4.3 of the AML/CFT Rules, a Reporting
Entity is required, for proprietary or private companies, to identify
the name and address of any beneficial owner (4.3.2, 4.3.10-4.3.16).
For a foreign public company, domestic unlisted public company
or a company that is licensed and subject to regulatory oversight, a
Reporting Entity must determine whether to collect and/or verify
the name and address of each beneficial owner (4.3.13). A Reporting
Entity is also required to have appropriate systems and controls to
determine whether and to what extent beneficial ownership informa-
tion should be verified (4.3.11).
• Trusts (section 4.4 of the AML/CTF Rules). The identification infor-
mation include inter alia the name of the settlor(s), the name and the
address of the trustee(s), the full name of each beneficiary, or details
regarding the class of beneficiaries. If any of the trustees is a com-
pany, it is required to identify the beneficial owner(s) of the company.
• Partnerships. In addition to the customer identification requirements
set out in Chapter 4.5 of the AML/CTF Rules, Reporting Entities
must identify the beneficial owners of each partner. The rules are
the same as for companies where the partnership is a body corporate.

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217. Ongoing CDD Requirements. Chapter 15 of the AML/CTF Rules
sets out the ongoing CDD requirements applicable to Reporting Entities on
all bank accounts. The ongoing CDD rules have:
• CDD Policy aspects. Reporting Entities must have appropriate
risk-based systems and controls to enable them to determine in
what circumstances further CDD information or beneficial owner
information should be collected or verified in respect of customers
or beneficial owners of customers to enable the review and update of
CDD information and beneficial owner information for ongoing CDD
purposes (paragraph 15.2 of the AML/CTF Rules).
• CDD practical aspects. Reporting Entities must undertake reason-
able measures to keep, update and review the documents, data or
information collected during the CDD (particularly in relation to
high risk customers) and the beneficial owner identification pro-
cesses (paragraph 15.3 of the AML/CTF Rules).
218. As mentioned above, paragraph 15.3 of the AML/CTF Rules requires
Reporting Entities to undertake reasonable measures to keep, update and
review the documents, data or information collected under the 2014 AML/
CFT Rules (particularly in relation to high risk customers) and relating to the
beneficial owner. According to AUSTRAC, “reasonable measures” means,
appropriate measures which are commensurate with the money laundering
or terrorist financing risks.
219. The ongoing CDD rules refer mainly to two types of programmes:
• The Transaction Monitoring Program to introduce appropriate
risk-based systems and controls to monitor customer suspicious
transactions; and
• Enhanced CDD programme for high-risk customers. In relation to
beneficial ownership information, the Reporting Entity must clarify
or update beneficial ownership information already collected from
the customer, undertake a more detailed analysis of customer’s
KYC information and beneficial ownership information, and verify
or re-verify beneficial ownership information in accordance with
Chapter 4.
220. Retention period. The general minimum retention period for records
required to be kept under the AML/CTF Act is seven years. CDD records are
required to be kept for the life of the customer relationship and for seven years
after the Reporting Entity ceases to provide all Designated Services to the
customer (e.g. seven years after the closure of a bank account by a customer).
221. Enforcement measures. The AML/CTF Act contains a number
of sanctions applicable for non-compliance with the AML/CTF Act by

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Reporting Entities. Civil penalties are applicable in case of breach in iden-
tification and verification requirements (sections 29, 31, 32, 34 and 35), and
ongoing CDD requirements (sections 36). The maximum pecuniary penalty
available for a civil penalty under the Act is AUD 18 million for body corpo-
rate and AUD 3.6 million for any other persons.

Introduced business rules
222. There are some deficiencies in the AML/CTF Rules regarding intro-
duced business rules.
223. The 2016 Terms of Reference require that beneficial ownership
on bank accounts is available in a timely manner, which is it accurate and
up-to-date, this should also be the case if the customer was introduced by a
domestic or foreign third party introducer.
224. Section 38 of the AML/CTF Act sets out the conditions in which a
Reporting Entity may rely on the CDD measures performed by a third party.
The third party must be a Reporting Entity and have performed CDD con-
sistent with the AML/CTF Act and Rules. Section 38(d) further provides that
other conditions set out in the AML/CTF Rules must be satisfied. Chapter 7
of the AML/CTF Rules sets conditions in relation to two types of Reporting
Entities which can be relied upon:
• holders of an Australian Financial Service Licence (AFSL) provid-
ing Designated Service within item 54 of table 1 of section 6 of the
AML/CTF Act (i.e. licenced financial advisors), and
• another Reporting Entity which is a member of the same “designated
business group”.
225. To rely on a licensed financial advisor, the following conditions must
be met:
• the advisor must make arrangements for the customer to receive a
Designated Service from the Reporting Entity;
• the Reporting Entity must obtain a copy of the CDD conducted by
the advisor or have access to the CDD record under an agreement
in place for the management of identification or other records. The
AML/CTF Rules allow this information to be obtained as soon as
practicable; and
• the Reporting Entity must determine that it is appropriate to rely
on the CDD carried out by the advisor having regard to the ML/TF
risk faced by the advisor relevant to the provision of the Designated
Service to the customer.

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226. The law does not explicitly state that the Reporting Entity relying on
a third party remains ultimately responsible for CDD measures. It is recom-
mended that Australia introduces relevant provisions to ensure that beneficial
ownership information on bank account holders that are introduced is avail-
able in all instances.

Implementation of the Common Reporting Standard
227. Australia committed to automatic exchange of information on finan-
cial accounts, in accordance with the Common Reporting Standard (CRS),
with first exchange in 2018. The implementing CRS legislation received
Royal Assent on 18 March 2016 and will take effect on 1 July 2017. Regarding
the due diligence procedures, the legislation refers to Sections II through VII
of the CRS. A full legislative assessment of the implementation of the CRS
into Australian domestic law will be carried out by the Global Forum at the
end of 2017/first half of 2018.

Enforcement provisions to ensure availability of banking information
228. In Australia, banks and other regulated entities are supervised by
AUSTRAC, which monitors compliance with the AML/CTF Act by finan-
cial institutions (and other Reporting Entities under the AML/CTF Act such
as those in the gaming and bullion sector, which are not relevant for EOI
purposes) in respect to customer account details, including accurate infor-
mation concerning the beneficial owners of customers. This information is
ascertained at the point of customer on-boarding and further updated using
ongoing customer due diligence procedures. Both procedures are mandatory
under the AML/CTF Act and Rules and must be clearly set out within the
bank’s AML/CTF Program.
229. This section is organised in two parts: (i) the description of the
organisation and resources of AUSTRAC and its oversight activities during
the peer review period and (ii) the oversight activities of AUSTRAC during
(a) the transitional period from 1 June 2014 until 31 December 2015 and
(b) from 1 January 2016.

Organisation, resources and oversight activities of AUSTRAC
230. As at 30 September 2016,AUSTRAC had a total of 324 employees, 71
of which deal solely with compliance. Initially, the focus was on tax evasion
rather than money laundering and terrorist financing. This is why there is a
close relationship with the ATO. As at 30 September 2016, there were 14 144
Reporting Entities enrolled with AUSTRAC. These include mostly financial
institutions, gambling and bullion dealers. AUSTRAC indicated that within

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the international co‑operation framework, they seldom receive requests for
beneficial ownership from other jurisdictions.
231. AUSTRAC has three compliance assessment (front-line) teams which
carry out onsite assessments and desk reviews:
i. Major Reporter’s team – has responsibility for the supervision of
363 Reporting Entities including 18 designated business groups 14
(DBG’s). These Major Reporters are Reporting Entities which hold
significant market share and position, with high degrees of business
or product complexity.
ii. Compliance Remitters team – has responsibility for the supervision
of AUSTRAC’s alternate remittance sector.
iii. National Compliance team – supervises all entities that are not
Remitters or Major Reporters. Industry types include financial services,
gambling, superannuation, bullion and stored value card providers.
232. Compliance assessment activities include on-site inspections to
review applicable customer identification policies and enhanced customer due
diligence procedures for all customer types including high risk customers,
inspection of records of identification procedures such as customer applica-
tion forms and verification documents, and review of electronic verification
systems and supporting IT systems.
233. Prior to 1 January 2016, which was the effective implementation date
of the new Customer Due Diligence Rules, and during the peer review period
(1 April 2013 until 31 March 2016), AUSTRAC carried out ongoing super-
visory activities in relation to customer due diligence with respect to banks.
The following is a statistical breakdown of the results:
• Conducted 313 desk reviews or on-site assessments;
• Issued 152 compliance assessment reports (CARs) where breaches of
Part 2 of the Customer Identification Procedures of the AML/CTF
Act were identified;
• Made 220 Findings directing Reporting Entities to address deficien-
cies in their customer identification procedures, including beneficial
ownership (104 of these findings related to deficiencies related to
ongoing CDD); and

14. A “designated business group” enables associated business entities to share the
administration of certain obligations under the Anti-Money Laundering and
Counter-Terrorism Financing Act 2006 (AML/CTF Act). The AML/CTF Act
allows any member of a DBG to fulfil certain obligations on behalf of other mem-
bers of the group. Alternatively, Reporting Entities that are members of a DBG
may still choose to fulfil their own AML/CTF obligations.

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• Made 12 findings relating to record keeping obligations associated with
customer identification procedures (section 112 of the AML/CTF Act).

Implementation of the 2014 CDD Rules
234. During the transition period (1 June 2014 to 31 December 2015),
AUSTRAC’s resources were allocated to assist Reporting Entities with the
implementation of the 2014 CDD Rules, whereas after the transition period,
the focus shifted to overseeing whether the 2014 CDD Rules have been effec-
tively implemented, as described below.

Transition period from 1 June 2014 to 31 December 2015
235. From 1 June 2014, Reporting Entities were required to strengthen
their AML/CTF programmes and CDD procedures.
236. To ensure full compliance by the banks as at 31 December 2015,
AUSTRAC assessed the transition plans of Reporting Entities in the Major
Reporters category. The transition plans, required by law, set out the actions
required to meet the new CDD requirements and achieve full compliance by
31 December 2015.
237. Between November 2014 and February 2015, the Major Reporters
team conducted an assessment of all except one (the Reserve Bank of
Australia) of the Reporting Entities in the Major Reporters category (com-
prising in total 363 banks). The responses to AUSTRAC’s assessment
enquiries included the transition plans, resourcing, that there was an appro-
priate approval authority and that progress with the plan was being regularly
reported on to the entity’s board or appropriate authority. AUSTRAC then
monitored the on-going progress with the Reporting Entities in the Major
Reporters Group on a regular basis (quarterly meetings.)
238. AUSTRAC found that all Major Reporters had taken reasonable meas-
ures to put into place a transition plan and satisfied the policy principles. The
assessment of the policy principles included whether the Reporting Entities:
a. complied with the relevant provisions as soon as practicable, in
respect of any person who became a customer between 1 June 2014
and 1 January 2016 who was assessed by the Reporting Entity to be of
high risk of money laundering or terrorism financing (ML/TF) risk;
b. established a transition plan before 1 November 2014 which included
actions and timeframes to:
i. ensure compliance with the obligation in paragraph (a); and
ii. achieve full compliance with the relevant provisions prior to
1 January 2016;

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c. obtained approval for the transition plan from the Board or similar
governing body (the “Board”), or where no Board existed, the Chief
Executive Officer or equivalent (the “CEO”) of the Reporting Entity.
In the case of a Designated Business Group (DGB), this approval
had to be obtained from the Board or CEO of each entity in the
DBG, or from a person or Board with written authority from each
entity in the DBG to approve the transition plan, to receive and con-
sider the monitoring reports referred to in subparagraph (e) below
and to report to each entity in the DBG on the implementation of
the transition plan and on any matters referred to in the monitoring
reports;
d. sufficiently resourced the implementation of the transition plan to
enable the 1 January 2016 timeframe to be met;
e. regularly monitored and reported to the party which approved the
transition plan under paragraph (c) above (that is, either the Board, or
the CEO of the Reporting Entity or of each entity in the DBG or the
person or Board with written authority from each entity in the DBG)
on the implementation of the transition plan and, as necessary, took
appropriate action to ensure timeframes do not unreasonably deviate
from those set out in the approved plan;
f. on request, provided AUSTRAC with a copy of the transition plan,
information on progress against that plan and a copy of the written
approval described in (c) and, in addition, in the case of a DBG,
a copy of the written authority from each entity in the DBG (if
applicable);
g. complied with the relevant provisions, in respect of the whole or part
of the provision of Designated Services, as soon as can be reasonably
accommodated through existing operations.
239. AUSTRAC indicated that the monitoring activities regarding some
of the banks continued with most large banks due to finish remediation of
their high risk customers by the end of 2016, that is to say with one year
delay. AUSTRAC indicated that the major banks have confirmed that as at
April 2017 they were fully compliant. AUSTRAC requires all of its regulated
population to complete an annual compliance report. The report for 2016
was scheduled to be submitted by no later than 31 March 2017. This report
includes a question on compliance with the enhanced CDD obligations.
The responses to this question will be analysed and it will determine the
next steps in addressing any non-compliance across the complete regulated
population.

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Supervisory activity post 1 January 2016
240. From February to June 2016, AUSTRAC conducted a focussed
compliance campaign to coincide with the end of the transition period. The
campaign aimed to (i) monitor how Reporting Entities had implemented
the CDD obligations, (ii) assess the implementation of the CDD changes
and (iii) determine what further guidance and support was needed to assist
industry.
241. AUSTRAC indicated that the CDD campaign was targeted specifi-
cally on the new requirements in relation to beneficial owners and how well
industry had responded to adopting the new rules. It targeted those Reporting
Entities having customer bases that included large numbers of businesses and
trusts. The campaign aimed to:
• Determine whether the selected Reporting Entities have implemented
the CDD Rules changes relating to beneficial ownership;
• Determine whether those that have implemented are meeting the new
obligations;
• For those that have not implemented, determine why they have not;
• Improve compliance with beneficial ownership obligations for all
entities assessed;
• Improve AUSTRAC’s understanding of how entities are interpreting
and implementing the rule changes;
• Use information gathered to inform feedback/guidance documents
and subsequent campaigns; and
• Identify and disseminate any relevant intelligence to AUSTRAC’s
Intelligence Branch and any relevant partner agencies.
242. The scope of the campaign focused on (i) risk assessment – consid-
eration of the risks associated with the beneficial ownership of customers
and any changes to beneficial ownership, (ii) ongoing customer due diligence
– including enhanced customer due diligence and (iii) applicable customer
identification procedures. The assessments also included a review of the
entity’s Transition Plan to determine whether this had an impact on the level
of compliance exhibited.
243. Only Reporting Entities who claimed to have fully implemented the
new Rules were subject to an onsite assessment. The desk reviews are con-
ducted in a very similar way to the onsite except the compliance team does
not visit the entity and there is no sampling of customer files. The focus is on
reviewing the Reporting Entity’s policies and procedures to ensure that they
addressed the new beneficial ownership requirements.

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244. To determine the sample of Reporting Entities, AUSTRAC used
a selection method based on customer types; e.g. those only having non-
individual customers, those having customers sending funds to financial
centres, etc.
245. Out of 39 Reporting Entities identified for assessment, 29 met expec-
tations, whereas 10 (i.e. around 25% of the sample) did not meet expectations.
The 25% non-compliance rate is quite high, and AUSTRAC indicated that
these 10 non-compliant Reporting Entities will enter into an enhanced follow-
up to ensure that they remedy the identified deficiencies in a timely manner.
246. AUSTRAC carried out 28 onsite assessments and 11 desk reviews.
As a result, 888 customer files sampled at the onsite assessments were
reviewed, which led to 16 compliance assessment reports issued to Reporting
Entities (including 26 recommendations and 32 findings, which are binding)
and to 23 letters sent to confirm compliance by the Reporting Entity with the
2014 CDD rules.
247. AUSTRAC has commenced an oversight and enforcement pro-
gramme, however, due to the short period of time since the full application
of the 2014 Rules, the adequacy of the oversight and enforcement in practice
could not be fully assessed.Australia should monitor the effective implemen-
tation of the 2014 CDD rules by Reporting Entities, notably by ensuring that
adequate oversight and enforcement activities are carried out.

ToR A.3. Availability of bank information in practice
248. The 2010 Report found that Australia had successfully responded to
all of its requests for bank information in the period 2007-09. In the current
review period, Australia received and responded to 205 EOIR requests for
bank information (approximately 34% of the total EOI requests during the
peer review period). Australia introduced new CDD requirements on banks
with effect from 1 June 2014, effective implementation of which by banks
is supervised by AUSTRAC (see Oversight and enforcement activities by
AUSTRAC.) In practice, the ATO answered all EOI requests on banking
information received during the peer review period. However, the ATO
never received an EOI request on beneficial ownership information of bank
accounts (see availability of bank information in practice).

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Part B: Access to information

249. Sections B.1 and B.2 evaluate whether competent authorities have
the power to obtain and provide information that is the subject of a request
under an EOI arrangement from any person within their territorial jurisdic-
tion who is in possession or control of such information; and whether rights
and safeguards are compatible with effective EOI. Each section begins with a
short description of the main issues found in the 2010 Report and the changes
made since that report and then a brief summary of the EOI practice during
the review period. This is completed by a table of recommendations made in
this report.
250. The section then analyses Australia’s compliance with each of the
enumerated aspects of the element, beginning with a summary of the legal
and regulatory framework where this remains unchanged from the 2010
Report and an analysis of any changes made since that report. Similarly, the
measures in place to ensure the ability to access the requested information in
practice are also described, with an analysis of any changes in those measures
that address recommendations made in the 2010 Report and an update of the
oversight activity during the review period.
251. Finally, each section evaluates the access to information in the con-
text of EOIR in practice, including an analysis of any issues raised by peers
and, if relevant, the access to the information in a domestic context.

B.1. Competent authority’s ability to obtain and provide information
Competent authorities should have the power to obtain and provide information that is the
subject of a request under an exchange of information arrangement from any person within
their territorial jurisdiction who is in possession or control of such information (irrespective
of any legal obligation on such person to maintain the secrecy of the information).

252. The 2010 Report found that the ATO had broad and specific powers
to access information that expressly contemplate responding to a request
for information in relation to a liability for foreign tax. During the previous
review period, the ATO used its information gathering powers in order to

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82 – Part B: Access to information

obtain bank information, but all other information requested during that time
period was either in its possession, publicly available (through ASIC or land
registry databases), or was voluntarily provided by the person in possession
of it.
253. In the interim, there have been no changes to the information gath-
ering powers in Australia, apart from a technical merging of the access
provisions into the Income Tax Act. There are no specific access powers
regarding obtaining beneficial ownership information and it is confirmed
by the Australian authorities that the current provisions are used to access
beneficial ownership information for tax purposes.
254. In the current review period, Australia received 596 EOI requests,
which could be answered with the general access powers available to the
ATO.
255. The new table of determinations and ratings is as follows:

Determination on the Legal and Regulatory EOIR Framework
The element is in place.

Practical Implementation of the EOIR Standard
Rating of element B.1 COMPLIANT

ToR B.1.1: Access to Legal and Beneficial Ownership and Bank
Information
256. The 2010 Report described two situations: (i) where the information
is available with the ATO or available to the EOI Unit through the access
it has to the databases maintained by AUSTRAC, ASIC and DIBP the
Department of Immigration and Border Protection (DIPB), and (ii) where the
information was not immediately held or accessible by the ATO, e.g. informa-
tion held by another Australian agency, other third parties or the taxpayer. In
the latter case, a formal access request could be made to the record holder in
Australia using statutory access powers which were far reaching. The same
rules continue to apply (see 2010 Report, paras. 184-185 for more detail)].
257. There were no changes made to the legal framework apart from a
technical merge of the provisions for access, which previously were in the
income tax and GST Acts. This has been combined into one single provision.
258. In addition to what is mentioned in the 2010 Report, the ATO is able
to obtain information that is required to be held for anti-money laundering
purposes (see below).

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259. During the period 2007-09 the ATO did not have any difficulty
obtaining information, either from financial institutions or otherwise. During
the period under review (1 April 2013- 31 March 2016), the EOI Unit either
had the requested information available with the ATO or other accessible
databases (for example, approximately one third of requests are related to
the collection of tax debt, for which the ATO could assist using information
immediately available), or could obtain such information from a third party,
irrespective of the type of information requested. Peer inputs received raised
no issues in respect of the ability of the ATO to access information of any
kind.

Information directly or indirectly available with the ATO
260. The majority of EOI requests that Australia receives can be
responded to from information already contained within the ATO, or from
information available to the EOI Unit through the access it has to the data-
bases maintained by AUSTRAC, ASIC and DIPB. Timelines for obtaining
this type of information are short. Information held by another Federal, State
or Territory governments or agencies can also be quickly retrieved.
261. Regarding legal ownership information, the ATO will usually use its
own database and that of AUSTRAC. AUSTRAC accesses ASIC Registers
and foreign public registers to source legal ownership information in relation
to a Reporting Entity, or its customers that are companies. Chapter 4 of the
AML/CTF Rules requires regulated entities to verify customer information
from ASIC records. AUSTRAC also uses in-house information databases.
262. For trusts, partnerships, associations and co-operatives, AUSTRAC
has powers to request a copy of the Reporting Entity’s record of the primary
documentation or agreement establishing the entity – such as trust deeds,
partnership agreements and articles of association or constitution. The ATO
would use its formal information gathering powers under sections 353-15 and
353-10 of the TAA to obtain the information directly from the entity.

Information available with third parties (taxpayers, service providers
and banks)
263. For information that is not already held by the ATO, or readily
accessible, the Commissioner of Taxation is able to use his access powers
to obtain ownership, identity and accounting information. Section 23 of
the International Tax Agreements Act 1953 permits the Commissioner of
Taxation to use any or all of his formal access powers for the purpose of
responding to a specific request for EOI in tax matters. In practice, the EOI
unit uses the “353 Notice” to require production of the information. In these
cases, 28 days is the usual period set to respond. The ATO indicated that

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many responses are received earlier than the 28 day maximum time period
allowed, and that some responses may be permitted after the 28-day period if
requested and substantiated by the third party.
264. AUSTRAC hold a database with all the transaction and suspicious
matter reports submitted by Reporting Entities under the AML/CTF Act,
which is searchable by date, name or other search criteria. This is a useful
database for the ATO to find out the bank account number and the name of
the bank. In practice, the ATO has adequate powers to ensure that it could
always get the requested banking information from banks. For example,
the ATO is also empowered under the AML/CTF Act to issue notices to a
Reporting Entity or any other person requesting information specified in the
notice concerning a transaction report submitted to AUSTRAC, including
information and documentation on the beneficial ownership and control of
a customer.

Information held by a taxpayer
265. Where information is in the possession of a taxpayer, the request will
generally be referred to a compliance area of the ATO to obtain the informa-
tion needed. The EOI Unit has nominated “gatekeepers” for each area of the
ATO with which it deals regularly, and these gatekeepers assist the EOI Unit
in referring a request to the team that is most suitable to gather the informa-
tion which the EOI Unit requires to respond to a requesting EOI partner. The
gatekeepers also help to ensure that the information that is provided by the
compliance area is in a format which can be readily sent to the requesting
EOI partner.
266. Where a taxpayer asserts they are not in possession or control of the
information the ATO would use its formal information gathering powers
under sections 353-15 and 353-10 of the TAA to compel the production of the
information (using a 353 Notice)
267. Where a taxpayer asserts that he or she is not in possession or
control of information as this information is located outside of Australia
(including information required to be maintained under Australian law), the
Commissioner may serve what is known as an “offshore information notice”
request under section 264A of the ITAA 1936. The Australian authorities
accepted that enforcement of an “offshore information notice” was difficult,
however they advised that the ATO would vigorously test the assertion that
such records are genuinely located outside of Australia and therefore not
under the custody and control of the Australian parties.

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Information held by third parties, including banks
268. Where information is in the possession of a third party, such as a
service provider or a bank, satisfying a request will generally require the use
of formal information gathering powers. The EOI unit will generally send
the formal notice directly, without involving a compliance area, and would
request a reply within 28 days. More time may be allowed depending on the
complexity of the request.
269. Regarding bank information, there are no specific procedures to
obtain information held by banks or other financial institutions – the general
powers of formal access given to the Commissioner of Taxation are used. The
ATO maintains a close relationship with all Australian banks and to facilitate
such requests each of the banks has established a designated contact whose
sole purpose is to provide banking information to Australian Government law
enforcement and regulatory authorities.
270. The Australian competent authority generally requires as much
information as possible from the requesting authority to accurately identify
the account holder. If known, such information would include the name of
the bank, the holder of the bank account, the date of birth of the holder of the
account (in the case of an individual), the address of the account holder, and
the account number. The ATO has access to AUSTRAC data and this system
can also be used to identify bank accounts that might be relevant to the for-
eign competent authority.
271. Some delays can be encountered before the information is provided,
depending on the bank and volume/type of information requested. Whilst
that has a contact point in each Australian bank that is responsible for pro-
viding this type of information to the ATO, the ATO indicated that these
contacts can sometimes become overwhelmed with requests for information,
or experience a shortage of staff, which can cause slight delays. However, the
requested information is generally provided within 28 days, although at times
such requests can take a little longer to be fulfilled. Peers indicated they were
generally satisfied with the timeliness of the responses provided by the ATO,
and indicated that delays were only occurring at times for complex requests
involving large amount of requested documentation, such as transfer pricing
cases.

Access to beneficial ownership information
272. The ATO can use its regular access powers to access beneficial
ownership information depending on where the source of the information
is (i.e. with the ATO or with third parties (taxpayers, service providers and
banks)). There is no distinction made in respect of the type of information

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86 – Part B: Access to information

requested by the ATO, such that the access power provisions allow the ATO
to obtain beneficial ownership information.

ToR B.1.2: Accounting records
273. Accounting information, sought in a request, may already be avail-
able within the ATO. However, the powers described in section B.1.1. can be
used to obtain accounting information, whether from a third party or from the
taxpayer. There are no particular rules that apply to accounting records that
would impede the use of these powers.
274. During the current review period ATO has received 50 requests for
accounting information. The ATO replied to all the EOI requests.

ToR B.1.3: Use of information gathering measures absent domestic
tax interest
275. The ATO’s powers are not curtailed by any requirement that the power
may only be exercised where there is a domestic tax interest. Consequently,
the issue of a domestic tax interest does not arise. There were no issues in this
regard during the period 2007-09 and no such issues have arisen in the current
review period.

ToR B.1.4: Effective enforcement provisions to compel the
production of information
276. With respect to the access powers from the ATO, failure to comply
with a request for information from the ATO constitutes an offence under
section 8C of the TAA 1953, which is punishable on conviction by a fine
or imprisonment (dependent on the nature of the offence). The court may
also order payment of a further amount where failure was held to be due to
an attempt to avoid an amount of a tax liability by the convicted person or
another person.
277. There were no cases during the period 2007-09, nor during the cur-
rent peer review period (1 April 2013 until 31 March 2016), that required the
ATO to resort to such measures in order to obtain information.

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ToR B.1.5. Secrecy provisions

Bank secrecy
278. The 2010 Report noted that there were no statutory bank secrecy rules
in Australian law, rather bank information is subject to a duty of confidential-
ity and in any event the powers granted to the ATO operate notwithstanding
any other rules or laws regarding secrecy. This continues to be the case.

Professional secrecy
279. The 2010 Report, in paras 189 to 198, noted that Australia is not
obliged to supply information in response to an EOI request under a treaty
when the requested information would disclose a confidential communication
protected by attorney-client privilege or legal professional privilege (LPP).
The concept of LPP has been extended administratively in Australia, for tax
purposes, by what is called the “accountants’ concession”. While recognising
that the Commissioner has the statutory power to access most documents, it
has been accepted that there is a class of documents which should, in all but
exceptional circumstances, remain confidential to taxpayers and their profes-
sional accounting advisors (see paras 193 to 198 of the 2010 Report). 15
280. The concession applies only to documents prepared by external profes-
sional accounting advisors who are independent of the taxpayer and generally
only to “non-source” documents, but may apply to “source” documents in
certain cases. The 2010 Report introduced a recommendation in element C.4
to monitor the application of this “accountants’ concession” in preventing
effective exchange of information for tax purposes (see element C.4). The
Australian authorities have advised that no such cases have arisen in the current
review period, in connection with an EOI request. More details are presented
in element C.4.

B.2. Notification requirements, rights and safeguards
The rights and safeguards (e.g. notification, appeal rights) that apply to persons in the
requested jurisdiction should be compatible with effective exchange of information.

281. The 2010 Report found that there were no notification requirements
or appeal rights and the element was determined to be In Place and rated
Compliant. There have been no relevant changes to the legal framework. No

15. See Guidelines to Accessing Professional Accounting Advisors Papers (full text
available at www.ato.gov.au).

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88 – Part B: Access to information

issues were raised in practice, by peers, for the period 2007-09, nor during
the current review period.
282. The 2016 ToR have introduced a new requirement where an exception
to notification has been granted – in those cases there must also be an excep-
tion from time-specific post-notification. As Australia’s law does not require
notification, this new requirement does not need to be assessed.
283. The new table of determinations and ratings is as follows:

Determination on the Legal and Regulatory EOIR Framework
The element is in place.

Practical Implementation of the EOIR Standard
Rating of element B.1 COMPLIANT

ToR B.2.1: Rights and safeguards should not unduly prevent or
delay effective exchange of information
284. Rights and safeguards should not unduly prevent or delay effective
exchange of information.

Notification
285. The 2010 Report noted, and it remains the case, that the ATO has
a variety of powers at its disposal to require the production of information
(paras 201 to 205 of the 2010 Report). The basic provision to produce records
that may be relevant to an EOI request does not require notification of the
taxpayer being investigated.

Other rights and safeguards
286. Australia’s law does not provide appeal rights to the person who is
the object of a request for information, nor to the person who holds the infor-
mation and who is required to produce the information.

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Part C: Exchanging information

287. Sections C.1 to C.5 evaluates the effectiveness of Australia’s EOI in
practice by reviewing its network of EOI mechanisms – whether these EOI
mechanisms cover all its relevant partners, whether there were adequate
provisions to ensure the confidentiality of information received, whether it
respects the rights and safeguards of taxpayers and third parties and whether
Australia could provide the information requested in an effective manner.
Each section begins with a brief summary of the EOI practice during the
review period and a short description of the main issues found in the 2010
Report and the changes made since that report. This is completed by a table
of recommendations made in this report, showing the changes from the 2010
Report, where applicable.

C.1. Exchange of information mechanisms
Exchange of information mechanisms should allow for effective exchange of information.

288. During the current review period none of the peers have raised issues
regarding ATO’s application of the foreseeable relevance standard.
289. The 2010 Report concluded that Australia’s network of EOI mecha-
nisms was In Place and was rated Compliant. In 2010, Australia had 44 DTCs
and 25 TIEAs. All of these agreements met the standard except for the
DTC with Switzerland that did not meet the standard due to limitations on
exchange of information in the partner jurisdiction. Since then, the DTC with
Switzerland that did not meet the standard has been renegotiated to meet the
international standard. An amending Protocol was signed on the 30th of July
2013 and entered into force on 14 October 2014.
290. Australia currently has 46 DTCs and 36 TIEAs. As of 5 May 2017,
with the application of the Multilateral Convention, Australia has in total
126 EOI relationships.
291. The new table of determinations and ratings is as follows:

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90 – Part C: Exchanging information

Determination on the Legal and Regulatory EOIR Framework
Determination: In Place
Underlying Factor Recommendation
Significant
Deficiencies Identified
in the Implementation
of EOI in Practice
Practical Implementation of the EOIR Standard
EOIR Rating COMPLIANT

ToR C.1.1: Foreseeably relevant standard
292. Exchange of information mechanisms should allow for exchange of
information on request where it is foreseeably relevant to the administra-
tion and enforcement of the domestic tax laws of the requesting jurisdiction.
The 2010 Report found that Australia’s network of DTCs follow the OECD
Model Tax Convention and are applied consistent with the Commentary on
foreseeable relevance. Similarly, Australia’s TIEAs follow the 2002 Model
Agreement on Exchange of Information on Tax Matters.

Compatibility of the EOI network with the Terms of Reference
293. The EOI network of Australia expanded its EOI network by signing and
ratifying the Multilateral Convention which entered into force on 1 December
2012. In the 2010 Report, it was determined that all but the 1980 DTC with
Switzerland in line with the 2010 Terms of Reference. To address this recom-
mendation, Australia has renegotiated its DTC with Switzerland. It was signed
on the 30 July 2013 and entered into force on 14 October 2014. Article 25 of this
new DTC complies with the international standard.

Interpretation and application of the foreseeable relevance standard
294. Australia continues to interpret and apply its DTCs and TIEAs con-
sistent with these principles of foreseeable relevance, as embedded in the
commentary to article 26 of the OECD Model Convention.
295. The ATO indicated that the following information is looked at to
assist in determining the foreseeable relevance of the request:
• reference to the legal basis upon which the request is based;
• identity and details of the person under investigation;

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• relevant background information including the tax purpose for which
the information is sought, the origin of the enquiry, reasons for the
request, grounds for believing that the information is held in the other
jurisdiction;
• how the requested information might aid a specific investigation or
audit (there must be a nexus to an open inquiry or investigation);
• a statement that all domestic means has been pursued to obtain the
information;
• a statement that the request is in conformity with the laws and admin-
istrative practices of the requesting jurisdiction, that they could obtain
the information if it was within their jurisdiction and the request is in
conformity with the legal instrument on which it is based; and/or
• the taxes concerned ensuring that these are within the scope of the
legal instrument being used.
296. The ATO confirmed that it never declined a request on the basis of
lack of foreseeable relevance. Where there is a lack of clarity or insufficient
detail is provided, the ATO indicated they would seek clarification and/or
provide as much information as possible that in the view of the Competent
Authority is seen as being relevant to the request.
297. Peers have not raised concerns regarding the interpretation by the
ATO of the foreseeable standard. Peers mentioned that requests for clarifi-
cation were usually made by the ATO in case of complex EOI requests (for
example complex transfer pricing cases) and were always justified.

Group requests
298. None of Australia’s EOI agreements exclude the possibility of reply-
ing to a group request. Australia interprets its domestic law and its EOI
agreements such that it can reply to a group request to the extent that the
request meets the foreseeable relevance as described in the 2012 Update to
the commentary on Article 26 of the OECD Model Convention.
299. Australia is yet to receive or make a group request. In replying to or
preparing a group request, ATO indicated it would verify that the foreseeable
relevance standard is met, notably by requiring a detailed description of the
group and the specific facts and circumstances that have led to the request,
an explanation of the applicable law and why there is reason to believe that
the taxpayers in the group for whom information is requested have been
non-compliant. In addition the ATO would require clarification on how the
requested information would assist in determining compliance by the taxpay-
ers in the group.

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ToR C.1.2: Provide for exchange of information in respect of all
persons
300. The 2010 Report found that none of Australia’s EOI agreements
restrict the jurisdictional scope of the exchange of information provisions to
certain persons, for example those considered resident in one of the contract-
ing parties. No issues arose in the period 2007-09 in this regard.
301. The additional agreements (see element C.2 Exchange of information
network) that Australia has entered into since then 2010 are in compliance
with the international standard in this respect. Peers have not raised any
issues in practice during the current review period.

ToR C.1.3: Obligation to exchange all types of information
302. The 2010 Report did not identify any issues with Australia’s network
of agreements in terms of ensuring that all types of information could be
exchanged and no issues arose in practice.
303. The additional agreements that Australia has entered into since 2010
do not restrict the types of information to be exchanged (see element C.2
Exchange of information network). Peers have not raised any issues in prac-
tice during the current review period.

ToR C.1.4: Absence of domestic tax interest
304. The 2010 Report did not identify any issues with Australia’s net-
work of agreements regarding a domestic tax interest and no issues arose in
practice.
305. The additional agreements that Australia has entered into since 2010
do not restrict the types of information to be exchanged (see element C.2
Exchange of information network). Peers have not raised any issues in prac-
tice during the current review period.

ToR C.1.5: Absence of dual criminality principles
306. The 2010 Report did not identify any issues with Australia’s network
of agreements in respect of dual criminality and no issues arose in practice.
307. The additional agreements that Australia has entered into since 2010
do not restrict the types of information to be exchanged (see element C.2
Exchange of information network). Peers have not raised any issues in prac-
tice during the current review period.

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ToR C.1.6: Exchange information relating to both civil and criminal
tax matters
308. The 2010 Report found that Australia’s network of agreements provided
for exchange in both civil and criminal matters and no issues arose in practice.
309. The additional agreements that Australia has entered into since 2010
do not restrict the types of information to be exchanged (see element C.2
Exchange of information network). Peers have not raised any issues in prac-
tice during the current review period.

ToR C.1.7: Provide information in specific form requested
310. The 2010 Report noted that the ATO applies its EOI mechanisms
consistent with the OECD Model and so is prepared to provide information
in the specific form requested to the extent such form is known or permitted
under Australian law or administrative practice. The 2010 Report noted posi-
tive experience with this in the period 2007-09. During the current review
period, no peers raised concerns regarding the form in which information is
requested. The ATO indicated that they would accommodate the requesting
jurisdictions in respect of the specific form requested.

ToR C.1.8: Signed agreements should be in force
311. The 2010 Report noted that 14 of Australia’s EOI mechanisms were
not in force and Australia was recommended to bring its EOI agreements into
force as quickly as possible. However, the 2010 Report did not identify any
particular issue with the process through which Australia ratifies its interna-
tional agreements.
312. The agreements entered into since the 2010 Report have been, on
average, ratified within a 12 month period.

Bilateral EOI mechanisms
A Total number of DTCs/TIEAS A = B+C 82
B Number of DTCs/TIEAs signed (but pending ratification), i.e. not in force B = D+E 1
C Number of DTCs/TIEAs signed and in force C = F+G 81
D Number of DTCs/TIEAs signed (but pending ratification) and to the Standard D 1
E Number of DTCs/TIEAs signed (but pending ratification) and not to the Standard E 0
F Number of DTCs/TIEAs in force and to the Standard F 81
G Number of DTCs/TIEAs in force and not to the Standard G 0

313. In addition to Australia’s bilateral mechanisms Australia signed the
Multilateral Convention on 3 November 2011. The Multilateral Convention
entered into force on 1st December 2012.

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94 – Part C: Exchanging information

314. The 2010 Report included a recommendation under which Australia
should renegotiate the DTC with Switzerland which was not in line with
the international standard. As Australia has concluded a new DTC with
Switzerland which is in line with the standard, the recommendation included
in the 2010 Report is removed.

ToR C.1.9: Be given effect through domestic law
315. Australia has in place the legal and regulatory framework to give
effect to its EOI mechanisms. No issues were raised in the 2010 Report in
this regard, and no issue arose during the current peer review period (1 April
2013 until 31 March 2016.)

C.2. Exchange of information mechanisms with all relevant partners
The jurisdictions’ network of information exchange mechanisms should cover
all relevant partners.

316. The 2010 Report found that element C.2 was In Place and rated
Compliant. No peers have raised any issues regarding Australia entering into
an EOI mechanism. As of 5 May 2017, Australia has a bilateral EOI agree-
ment with 82 jurisdictions and an EOI relationship with a total of 126 EOI
partners due to the application of the Multilateral Convention.
317. Since 2010, Australia has carried out further expansion of its EOI
network or updated its EOI agreement network with Belgium, Italy, India,
Turkey and Switzerland. The Australian Government signed a new tax
treaty with Germany on 13 November 2015, which entered into force on
7 December 2016. Ratification and domestic legislation processes are under-
way. Australia started tax treaty negotiations with Israel in September 2015.
318. In addition, since 2010, Australia signed TIEAs with eight jurisdic-
tions, as illustrated in the table below:

Jurisdiction Type of agreement Date of signature Entry into force
Andorra TIEA 24-Sep-11 03-Dec-12
Bahrain TIEA 15-Dec-11 15-Dec-12
Brunei Darussalam TIEA 06-Aug-13 25-Feb-16
Costa Rica TIEA 01-Jul-11 04-Feb-13
Guatemala TIEA 26-Sep-13 Not yet in force
Liberia TIEA 11-Aug-11 23-May-12
Liechtenstein TIEA 21-Jun-11 21-Jun-12
Macao (China) TIEA 17-Jul-11 18-May-12

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319. Regarding the TIEA between Australia and Guatemala, Australia
has completed the domestic ratification process and has sent a diplomatic
note to that effect. Australia is currently waiting for Guatemala’s domestic
ratification process to be finalised before the TIEA comes into effect. In
total, Australia has concluded 46 DTCs and 36 TIEAs, totalling 82 bilateral
EOI agreements which are in line with the international standard. In addi-
tion, Australia has 110 EOI relationships under the Multilateral Convention.
In total, Australia has 126 EOI relationships. Australia should continue to
develop its EOI network with all relevant partners.
320. Regarding EOI agreement policies, the Australian authorities indi-
cated that they do now encourage jurisdictions to sign the MAC rather than
initiate the negotiation of a TIEA. They also indicated that the ratification
process takes approximately 6 to 12 months.
321. The new table of determinations and ratings is as follows:

Determination on the Legal and Regulatory EOIR Framework
Determination In Place
Practical Implementation of the EOIR Standard
EOIR rating COMPLIANT

C.3. Confidentiality
The jurisdiction’s information exchange mechanisms should have adequate
provisions to ensure the confidentiality of information received.

322. The 2010 Report found that Australia was fully compliant regarding
the confidentiality of information received (see paras 252 to 266 of the 2010
Report). In addition, Australia’s CRS Confidentiality and Data Safeguards
Report were adopted by the Global Forum in 2016 with “no recommenda-
tions” for further action.
323. Since 2010, the ATO has continued to update and improve its confi-
dentiality procedures and policies, as described in section C.3.1 below, which
is fully in line with the international standard.
324. The new table of determinations and ratings is as follows:

Determination on the Legal and Regulatory EOIR Framework
Determination In Place
Practical Implementation of the EOIR Standard
EOIR Rating COMPLIANT

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ToR C.3.1: Information received: disclosure, use and safeguards
325. As mentioned in the 2010 Report, all DTCs and TIEAs concluded by
Australia meet the confidentiality requirements embedded in Article 26(2) of
the OECD Model Taxation Convention on Income and on Capital, Article 8
of the OECD Model TIEA, and Article 22 of the Convention on Mutual
Administrative Assistance in Tax Matters respectively. In addition, sanctions
are provided for in the law in case of breach of confidentiality.
326. This section sets out the possibility for disclosure of confidential
information (for example during a court proceeding) and the application of
the confidentiality principles in practice.

Disclosure of confidential information
327. The Freedom of Information Act 1982 (FOI Act) provides a legally
enforceable right of access to documents (other than exempt documents).
The FOI Act does not contain an exemption for taxation information as a
class. However, there are exemptions in the FOI Act which apply to some
documents held by the ATO. The most relevant exemptions in the FOI Act
for EOI documents are the exemptions for documents which, if disclosed,
may prejudice the investigation of breaches of taxation law (section 37 of
the FOI Act) and for documents which, if disclosed, may cause damage to
international relations or divulge confidential communications from foreign
governments (section 33 of the FOI Act). The FOI Act does not prohibit or
prevent the ATO from disclosing exempt documents where disclosure would
otherwise be permitted by all other relevant laws. However, the ATO relies
on these exemptions when refusing FOI applications which seek information
obtained under tax treaty provisions.
328. The ATO has exempted access to EOI documents obtained under
a treaty, and requested by FOI applications, on several occasions. A recent
example in the public domain is Re Chemical Trustee Ltd v Commissioner
of Taxation (2013) 138 ALD 658. This was a decision in the Commonwealth
Administrative Appeals Tribunal (AAT) where the ATO exempted access to
EOI documents provided under a taxation treaty. The AAT held that the doc-
uments provided under an EOI provision in the taxation treaty were exempt
under section 33 of the FOI Act.
329. The ATO considers FOI applications on a case-by-case basis.
Consistent with paragraph 12 of the OECD Commentary on Article 26
(exchange of information) of the Model Tax Convention, Australia’s inter-
national tax agreements permit the ATO to disclose exchanged information
to the relevant taxpayer or their proxy. Therefore, if the relevant taxpayer
applied for access to EOI documents under FOI, it is possible that the ATO
would grant access to the requested documents. However, if the information

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requested under FOI could prejudice the investigation of breaches of taxation
law, cause damage to international relations or divulge confidential communi-
cations from foreign governments, then the ATO would likely refuse access to
EOI documents under the FOI Act – as it has done so previously. This would
include communications between the jurisdictions (such as covering letters).
330. There have been some instances where information has been dis-
closed under the FOI Act. These disclosures have been granted only after
the partner jurisdiction has been contacted and given their approval for the
information to be disclosed.

Confidentiality in practice
331. In practice, the information received is treated as secret. Information
received from a treaty partner is only used for the purposes provided for in
the treaty. Therefore information cannot be used to assess taxes not covered
by the treaty.
332. All EOI tasks are centralised within a single EOI Unit, the officers
in which are trained on confidentiality principles. Exchanged information
may be disclosed only to the person or entity concerned with the exchange.
The information may also be disclosed in public court proceedings or in
judicial decisions. However, current practice requires Australia’s Competent
Authority to advise the other treaty partner before disclosing information to
the taxpayer concerned.
333. Human resources management regarding the confidentiality princi-
ples covers the aspects described below.

Hiring process and departure policies
334. Under the Australian Government’s Personnel security management
core policy, all potential employees, contractors and consultants that might
have access to official information and resources, including treaty infor-
mation, undergo ATO employment screening through a Pre-Engagement
Integrity Check conducted by the ATO Security Vetting Team.
335. The ATO carries out two levels of Pre-Engagement Integrity Checks:
• A “standard” check for all Australian Public Service (APS) employee
levels, volunteers and contractors that includes checking the iden-
tity and criminal records of the person, and signing of a secrecy
declaration;
• An “enhanced” check for all Executive Level and above, or where
the position involves increased risks, including checks on academic
qualifications and employment history.

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336. The ATO reviews positions that require a security clearance, includ-
ing the level of clearance required, at least once a year or when there are
triggers such as the creation of new positions or variation in the scope of
duties to existing positions. All security clearance holders are to be subjected
to an annual check during which they will confirm with their managers their
personal circumstances. They are also to report to the ATO Security Vetting
Team if there is any significant change in their personal circumstances
(including financial and criminal).
337. The ATO has a range of internal policies, instructions and procedures
to ensure access to confidential information is terminated for departing
employees and contractors. These policies are reviewed on an annual basis or
when an emerging or escalating potential security risk is identified.

Training
338. Initial training for ATO employees is mandatory and includes privacy
and fraud. All staff and contractors receive training and/or policies in security
fundamentals, including key messages in relation to information security
(e.g. need-to-know principle and password policy), physical security (e.g. access
control, pass-wearing policy) privacy, and fraud and personnel security.
339. For managers, there is additional training named Security Awareness-
Security Essentials to be completed within 3 months of commencing duties
and every 2 years thereafter. This course is designed to provide awareness of
a manager’s role in ensuring that appropriate security measures are employed.
Participants are tested during the training to assess their understanding of the
content and their responsibilities.
340. There is also mandatory information security training for contrac-
tors handling official ATO records. Contractors are provided with a security
training CD and, upon completion of the courses and an assessment, are
given a certificate of completion

Physical and electronic security
341. All EOI information received in paper form is scanned. The elec-
tronic data is stored in the EOI share drive and the papers are either sent to
the relevant ATO compliance officer, when required for the purposes of legal
proceedings or, due to their size, are shredded in the ATO office. In practice,
the maintenance of paper records is kept as minimal as possible.
342. The current ATO practice for EOI information received on CD is
for the providing Competent Authority to encrypt the CD and send a pass-
word for decryption. The information in the CD is transferred to the EOI
share drive by using an enabled CD drive or an encrypted thumb drive

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and uploaded onto ATO systems for compliance use, prior to the CD being
destroyed. All treaty information is stored and managed by the EOI Unit in
a centralised EOI share drive folder to which only authorised EOI Officers
have access, on a “need to know” basis. The release of information is also
confined to a small number of tax officers.
343. In the case of electronically exchanged information through online
facilities, such as the Data Transfer Facility (a secure web-based user interface),
only authorised EOI officers have access to the secure mailbox. Transactional
information is only kept for a limited time and files that are uploaded are
purged within 21 days if they are not downloaded.
344. In terms of physical access, the ATO has a range of internal policies,
instructions and procedures for access to ATO premises by employees, con-
tractors and visitors. These core documents are published internally on the
ATO SharePoint and are included in a range of mandatory security training
packages for staff and contractors. These policies are reviewed on an annual
basis or when an emerging or escalating potential security risk is identified.
The ATO uses an electronic access control system (EACS) and site-based
security guards to control access to its sites. Authorised individuals have prox-
imity (“prox”) cards enabled for access. Visitors who have not been security
cleared are issued with photographic building passes and prox cards and are
escorted at all times by ATO employees or authorised and appropriately secu-
rity cleared contractors. The visitor, escort, and issuing guard jointly complete
the access register including identification information and reason for the visit.
In addition to this general security, all main ATO sites have rooms housing
data servers and secured electronic information which only authorised person-
nel can enter. To obtain key or passcode access to these rooms, in addition to a
demonstrated business requirement, approved users must be security cleared.
345. Data centres are managed under a service provider contract. They are
highly controlled sites with systems access, physical access controls, visitor
control, movement of goods inward and outward and controlled access to
internal areas that are all compliant with ISM and PSPF requirements for
physical and information security for storage of data, hardware and physical
assets up to and including “protected” level.

Information disposal policy
346. The ATO’s disposal process includes review and approval stages from
both the owning business area and the ATO’s Records Management Team,
which is responsible for the oversight and advice of records disposal and
destruction of paper and electronic records. The retention period varies from
3 to 20 years depending on the type and nature of the records involved. EOI
data is not treated separately. For instance, compliance case records which
involve investigations relating to serious non-compliance (such as deliberate

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fraud or evasion), and joint investigations with treaty partners, are destroyed
after 20 years. Simpler compliance case records are kept for 5 years.

Policy monitoring confidentiality breaches
347. Division 355 of Schedule 1 to the Taxation Administration Act 1953
restricts current and former tax officers against disclosing protected informa-
tion, which includes information obtained under a treaty. Section 355-25 of
Schedule 1 to the TAA creates a criminal offence of unauthorised disclosure
of protected information punishable by imprisonment for two years. The
confidentiality provisions, including the offence and penalty, also apply to
contractors and other individuals employed by or performing services for the
Australian Government (section 355-15). On-disclosure of unlawfully dis-
closed information that is protected by the taxpayer confidentiality provisions
is prohibited and sanctioned under section 355-265. In addition, on-disclosure
of lawfully disclosed confidential information for an unauthorised purpose
is prohibited and criminally sanctioned under section 355-155. It is also a
separate offence under the federal Crimes Act 1914, punishable by two years
imprisonment, for an Australian Government officer to unduly disclose infor-
mation (the offences cannot be cumulated).
348. The obligations in the Privacy Act 1988 apply to the ATO as an
agency, rather than to individual ATO officers. It creates criminal offences
only in some limited situations which the Australian authorities consider
as highly unlikely to be relevant to the ATO’s handling of treaty-sourced
information. However, the Privacy Act 1988 does provide for the imposition
of civil penalties on agencies. For example, under section 13G, if an agency
does an act, or engages in a practice, that is a serious or repeated interference
with privacy, a civil penalty of up to AUD 220 000 (EUR 141 500) may apply.
349. The Australian Public Service (APS) Act 1999 provides a framework of
expectations of public servants’ conduct, which must be aligned with the APS
Values and Code of Conduct. This includes the duty not to disclose confidential
information and the ATO has a Fraud Prevention and Internal Investigations
Unit available for investigation and enforcement of relevant breaches. Section 13
of the APS Act prohibits unauthorised access to, or disclosure of, confidential
information. The Commissioner of Taxation is able to impose a range of pen-
alties for these breaches, including termination of employment, reduction in
classification from level to level, re-assignment of duties, reduction in annual
salary and deductions from salary, by way of fine and a reprimand.
350. There have been no known cases in Australia of breach of confiden-
tiality related to information received by the Competent Authority from an
EOI partner. The ATO has physical, IT and procedural systems in place to
prevent potential unauthorised disclosure and processes in place to address any
instances that do occur. These processes include examination of any incidents

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to mitigate the breach and also identify actions that can then be taken to prevent
any future similar breaches. Instances of unauthorised access are addressed
jointly by IT, Information Security, Legal and Corporate ATO teams.

ToR C.3.2: Confidentiality of other information
351. The confidentiality provisions in Australian domestic law set out in
C.3.1 apply equally to protect the request for information itself and include
background documents provided by a requesting jurisdiction, as well as any
other information relation to the request such as communications between the
EOI partners in respect of the request.

C.4. Rights and safeguards of taxpayers and third parties
The exchange of information mechanisms should respect the rights and
safeguards of taxpayers and third parties.

352. The international standard allows requested parties not to supply infor-
mation in response to a request in certain identified situations where an issue of
trade, business or other secret may arise. The 2010 Report found that the legal
framework and the EOI agreements of Australia were in full conformity with
the international standard (see paras 268 to 274 of the 2010 Report).
353. However, the 2010 Report included a recommendation regarding the
“accountants’ concession” mentioned in C.4.1. below. As no subsequent EOI
cases have involved this concession, in practice, the monitoring obligation,
set out in the 2010 Report recommendation, is removed from the box.
354. The new table of determinations and ratings is as follows:

Determination on the Legal and Regulatory EOIR Framework
The element is in place.

Practical Implementation of the EOIR Standard
Factors underlying
recommendations Recommendation(s)
Deficiencies Identified
in the Practical
Implementation of the
EOIR Standard
Rating of element C.4 COMPLIANT

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ToR C.4.1: Exceptions to provide information
355. The 2010 Report concluded that the limits on information which must
be exchanged under Australia’s EOI agreements mirror those provided for
in the international standard. That is, information which would disclose any
trade, business, industrial, commercial or professional secret or trade process;
or would be contrary to public policy, is not required to be exchanged.
356. The 2010 Report introduced an in-box recommendation regarding
“the accountants’ concession”. In Australia, the concept of attorney client
privilege has been extended to certain advice and advice papers prepared
by external professional accounting advisors who are independent of the
taxpayer. As this privilege has never been invoked in practice, it is unclear on
which documents the accountants’ concession would apply. The 2010 Report
noted that the extension of the attorney client privilege to accountants did not
raise any problems in practice. Nevertheless, it was recommended that the
EOI unit maintain a record of all EOI cases in which the accountants’ conces-
sion is claimed together with an analysis of its effect in each case of the EOI
Unit’s ability to provide the information requested.
357. Australia explained that this concession has been extended only
administratively and is not embedded in the law. The concession guidelines
explain that source documents (such as those relating to an organisation’s
history, structure, chain of command, accounts, constitution, etc.) are not
covered by the concession. In practice, therefore,it is unlikely that any matter
covered by the concession will be relevant to an EOI request. Nevertheless, if
in exceptional circumstances that did occur, the concession can be lifted with
the approval of an appropriate senior ATO officer. Whilst this has not been
necessary in any EOI request, Australia has confirmed that the concession
has been disapplied in some domestic tax situations.
358. The EOI Unit created a spreadsheet to monitor the EOI cases for
which the information could not be gathered due to the accountants’ conces-
sion. The ATO has confirmed that, since 2010, no EOI cases have involved
the accountants’ concession. Because of the limited scope of the concession,
and the existence of a mechanism to access documents otherwise shielded by
it in appropriate cases, it is not expected to be a barrier to effective EOI in the
future. Accordingly, the monitoring recommendation from the 2010 Report
is removed from the box of recommendations.

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C.5. Requesting and providing information in an effective manner
The jurisdiction should request and provide information under its network of
agreements in an effective manner.

359. In order for exchange of information to be effective, jurisdictions
should request and provide information under its network of EOI mechanisms
in an effective manner. In particular:
• Responding to requests: Jurisdictions should be able to respond
to requests within 90 days of receipt by providing the information
requested or provide an update on the status of the request.
• Organisational processes and resources: Jurisdictions should have
appropriate organisational processes and resources in place to ensure
quality of requests and quality and timeliness of responses.
• Restrictive conditions: EOI assistance should not be subject to unrea-
sonable, disproportionate, or unduly restrictive conditions
360. The 2010 Report of Australia concluded that the procedures and prac-
tices in place to respond to EOI requests were adequate and ensure effective
and timely exchange of information. Nevertheless a recommendation was
introduced regarding the lack of status updates. This new report reviews in
addition the EOI practice of Australia in respect of the sending of requests.
It concludes that the procedures and practices of the ATO are adequate and
ensure a good quality of EOI requests. This analysis is confirmed by peer
input. Regarding status updates, the EOI Unit has put in place a reminder
system which is followed by the staff in most cases. However, two peers
indicated that they did not receive status updates in all cases. In light of the
progress made by the EOI Unit on the issue, the recommendation is deleted
from the box and moved to the text of the report as a point of attention to
monitor.
361. Taking all the above-mentioned elements into account and in par-
ticular noting the EOI procedures and practices in place to ensure the good
quality of EOI requests sent by the ATO, as confirmed by peers, the rating
for element C.5 remains Compliant.
362. The new table of determinations and ratings is as follows:

Determination on the Legal and Regulatory EOIR Framework
Not applicable

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104 – Part C: Exchanging information

Practical Implementation of the EOIR Standard
Significant Underlying Factor Recommendation
deficiencies identified
in the implementation
of EOI in practice
EOIR Rating COMPLIANT

ToR C.5.1: Timeliness of responses to requests for information
363. Over the period under review (1 April 2013-31 March 2016),
Australia received a total of 596 requests for information. For these years, the
number of requests where Australia answered within 90 days, 180 days, one
year or more than one year, are tabulated below.

Statistics on response time

2014 2015 2016 Total
Num. % Num. % Num. % Num. %
Total number of requests received 179 30 178 30 239 40 596 100
Full response: ≤ 90 days 125 70 114 64 155 65 394 66
≤ 180 days (cumulative) 150 84 153 86 200 84 503 84
≤ 1 year (cumulative) 172 96 172 97 237 99 581 97
> 1  year 7 4 6 3 2 1 15 3
Declined for valid reasons
Status update provided within 90 days (for responses sent after --1 -- -- --
90 days)
Requests withdrawn by requesting jurisdiction 0 0 0 0
Failure to obtain and provide information requested N/A N/A N/A N/A
Requests still pending at date of review 0 0 0 0 0 0 0 0

Australia counts each written request from an EOI partner as one EOI request even where more than
one person is the subject of an inquiry and/or more than one piece of information is requested.

The time periods in this table are counted from the date of receipt of the request to the date on which
the final and complete response was issued.

Note: 1. The ATO did not keep track of this information during the peer review period.

364. The response times in this table are counted from the date of receipt
of the request to the date on which the final and complete response was
issued. For requests received by paper, the date received in Australia (rather
than the date it was sent by the requesting jurisdiction) was used as the start
of the request, due to postal delays in receiving the request.

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365. Counting of requests. A request is counted as one case starting from
the first letter initiating the matter until the request has been fully satisfied.
Before January 2015, each letter was treated as one request regardless of the
number of taxpayers. However, since moving onto the SIEBEL system in
January 2015, where a request includes unrelated taxpayers, these will be
treated as separate requests due to the requirement to register each taxpayer
on the system separately and due to privacy issues.
366. Major EOI Partners. New Zealand is identified as a major EOI
partner with the ATO due to substantial movements of people and transac-
tions between the two countries. During the peer review period Australia
received 282 incoming requests (of 596 total) from New Zealand, accounting
for 47% of the total incoming requests.
367. The United Kingdom, United States, Canada and Japan are also con-
sidered significant EOI partners due to the many personal and commercial
links between the countries. These countries have remained Australia’s major
EOI partners for many years.
368. Timeliness of responding to requests. The timeliness of responding
to requests is slightly less positive than what was reported in the 2010 Report
in respect of the previous review period. However, at the time, Australia had
received a limited amount of EOI requests. In addition, the ATO indicated
that the EOI requests received during the new peer review period included
more that were complex in nature. For the present review period an overall
66% of requests have been answered within 90 days, and 97% of all the
requests within one year.
369. Status updates. The 2010 Report included a recommendation that
Australia should ensure that the new system put in place, to provide updates
to EOI partners after 90 days in those cases where it is not possible to pro-
vide a substantive response within that timeframe, operates effectively.
The systems were subsequently improved to ensure that status updates are
provided, but a number of peers stated that no status update was provided in
some cases. The ATO indicated that this issue has been stressed within the
EOI team, but it may have happened that no status updates were provided
if the EOI Unit knows that information will be provided shortly thereafter.
The ATO indicated, as confirmed by peer input, that the situation regarding
status updates has improved during the peer review period, and guidelines
have been put in place.
370. The recommendation is removed from the box because the ATO has
put in place a system to alert the case worker of the 90-day deadline, such that
status updates were provided in most cases during the peer review period.
However, as confirmed by some peer inputs, the EOI Unit has not provided
a status update in all cases during the peer review period, such that the

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106 – Part C: Exchanging information

recommendation remains in the text of this report and listed in Annex 5 List of
in-text recommendations. It is recommended that Australia ensures that status
updates to EOI partners after 90 days are provided in all those cases where it
is not possible to provide a substantive response within that timeframe.

Issues covered under other essential elements
371. The timeliness or the handling of requests may be affected by aspects
of a jurisdiction’s system other than the organisation of the EOI function itself
that are dealt with in this essential element C.5. Where this is the case, then
these issues are analysed under the appropriate heading. In particular, sec-
tion B.1. Access to Information analyses the access to information generally.
Section B.2 on Rights and Safeguards analyses issues arising in respect of
notification rules or appeal rights. In addition, section C.3 Confidentiality
deals with the storage and handling of requests and related information as
well as an assessment of whether disclosure of information to the holder of
the information is in conformity with the standard.
372. No issues were identified under these sections that have an impact on
element C.5 and elements B.1, B.3 and C.4 have been rated Compliant.

ToR C.5.2: Organisational processes and resources
373. The 2010 Report found no issues regarding organisational processes
and resources. During the peer review period, the organisational processes
and resources were adequate to ensure timeliness and quality of EOI request
responses by Australia.
374. For the purposes of Australia’s DTCs, TIEAs and the Multilateral
Convention, the Competent Authority is the Commissioner of Taxation or an
authorised representative. This authorisation also extends to senior officers
engaged in international exchange of information. For practical purposes the
Competent Authority function has been delegated to the EOI area for the
administration of exchange with Australian’s EOI partners.
375. The EOI team comprises a Director, two Assistant Directors and
seven EOI officers. The team is responsible for:
• administering Australia’s Competent Authority arrangements;
• managing the workflow of specific, spontaneous and automatic
exchanges of information;
• co-ordinating the ATO’s overall participation in the international
information exchange environment;
• negotiating TIEAs with other countries; and
• managing participation in the Global Forum’s Peer Review process.

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Part C: Exchanging information– 107

376. The Director oversees all functions of the EOI team and is the
Competent Authority in relation to all day to day exchange of information
matters. One Assistant Director oversees all EOI (incoming and outgoing
EOIR, spontaneous EOI and the JITSIC network). All seven personnel are
involved in this type of work (one officer is responsible for the JITSIC net-
work). One Assistant Director is currently responsible for AEOI, FATCA and
CRS. Two of the above personnel also assist in this area.
377. The personnel available to the EOI Unit are extended by the relationship
the Unit has with other teams throughout the ATO which it deals with regularly
(mainly in compliance business lines but occasionally law areas such as the
International Centre of Expertise). Compliance Officers are also available in the
business lines to assist with case work in order to action an EOI request.
378. The ATO indicated that with the expected increase in workloads
emerging from FATCA, CRS, Country by Country Reporting (CbCR) and
the Exchange of Rulings initiatives, they are in the process of increasing staff
resources in the transparency and EOI teams. Early in 2017, the ATO has
established a number of dedicated teams with requisite skill sets to design,
test and implement the effective use of automated data (AEOI). Two teams
are directly engaged with the planning and design of revised risk assessment
approaches for the optimised use of FATCA, CbCR, CRS, Rulings and exist-
ing AEOI data sets:
• 9 full-time equivalent staff (FTE) with a focus on the delivery of
a coherent strategy of ongoing data discovery and utilisation. This
team will develop intelligence and knowledge around internationally
exchanged datasets, work with ATO’s Smarter Data teams around
receiving, storing and analysing data, and will engage with potential
users of the data – business line compliance and audit teams, risk
managers, researchers/analysts.
• The Smarter Data team: 8 FTE with a focus on the better use of intel-
ligence and metrics for risk detection and treatment. Developing an
enhanced analytics/intelligence function that will allow incoming
and outgoing data to be evaluated more effectively and used more
strategically. Supporting global peer reviews and other monitor-
ing/review requirements under the OECD’s new BEPS Inclusive
Framework, and facilitating closer collaboration and assistance
across jurisdictions.
379. These teams are now working closely with ATO’s transparency pro-
ject teams. The project teams are the primary connection points to OECD
forums and the international initiatives now underway with all jurisdictions
regarding risk assessment and the effective use of data.

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108 – Part C: Exchanging information

Incoming requests
380. The process for managing EOI requests applied by the EOI Unit is
described in paragraphs 290 to 294 of the 2010 Phase Report and was found
to be adequate and efficient.
381. EOI database. Since 2015, the ATO has switched to a new database
system called SIEBEL. All incoming requests are registered as cases on
SIEBEL, which is a case management system used by the majority of compli-
ance areas within the ATO. This system provides the benefit of making the
case management of EOI more electronic. It also facilitates faster referrals
and transfer of information between the EOI Unit and other areas of the ATO.
All EOI requests are also monitored on an Excel spreadsheet.
382. Each step of these procedures is logged in the project management
software, which provides notices to the officer of impending deadlines. All
communications to the requesting competent authority are reviewed and vali-
dated by the head of the EOI unit (Competent Authority) and sent out under
his signature.
383. Requests for clarification. Where there is any lack of clarity or
insufficient detail is provided in an incoming request, the ATO indicated
(and this was confirmed by peers) that it will always seek clarification and/
or provide as much information as possible that in the view of the Competent
Authority is seen as being relevant to the efficient execution of the request.
Requests for clarification take the form of an email or letter back to the
requesting jurisdiction, or in some instances a phone call to their Competent
Authority to resolve the matter more quickly. In cases where the EOI Unit has
requested clarification but has not received a response, the ATO indicated the
EOI Unit will follow up with the jurisdiction involved before closing the case.

Outgoing requests
384. The 2016 ToR includes an additional requirement to ensure the qual-
ity of requests made by assessed jurisdictions. The EOI manual provides
rules for handling outgoing requests, establishing procedures to ensure the
quality of the EOI requests. The quality of EOI requests sent by Australia was
confirmed by the positive comments received from peers.
385. Process. All outgoing requests are made through a centralised
EOI Unit and follow standard procedures to ensure consistency which are
contained in the EOI Manual. These procedures are in line with the OECD
EOI Manual. Regarding the methods of transmission, Australia actively
encourages its EOI partners to use encrypted electronic exchange. However,
Australia will send its EOI request via mail if the EOI partner does not use
encrypted emails for EOI purposes.

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Part C: Exchanging information– 109

386. Quality checks. When processing outgoing requests, the EOI Unit
uses template letters, as far as possible, and the letter is then reviewed by the
business line gatekeepers. A third check is ensured by the ultimate approval
and signature is undertaken by the EOI Unit Director (Competent Authority).
The EOI Unit Director confirmed that he checks all outgoing EOI requests
before their sending to the EOI partner.
387. Template. The EOI Unit has been using a new template. During the
peer review period, the EOI Unit used a checklist that EOI staff followed in
processing outgoing EOI requests.
388. EOI Outgoing requests during the peer review period. Australia
sent 286 EOI requests in 2014, 172 in 2015 and 187 in 2016. The EOI Unit did
not track the number of requests for clarifications received, but indicated that
these were rare and usually dealt with complex requests. The ATO indicated
there is no specific procedure to deal with requests for clarification. However,
the EOI Unit Officer responsible for the request would provide clarification
in consultation with the case/audit officer making the initial request. This
is then reviewed by the Competent Authority prior to being sent back to the
other jurisdiction. In terms of timeliness, replies to requests for clarification
usually take place within a week of receiving the request for clarification.

Training
389. Training has been provided both to the EOI officers in the EOI unit
as well as to local officers with respect to the application of the EOI manual
generally. This has included an intense five day training course for the EOI
officers as well as two day training for local offices and for officers in the
central tax authority.
390. In addition, members of the EOI unit attend Global Forum Competent
Authority meetings and have been made available as expert assessors for peer
reviews. In this latter context, the head of the EOI Unit as well as two of the
EOI officers have attended assessor training courses provided by the Global
Forum.

ToR C.5.3: Unreasonable, disproportionate or unduly restrictive
conditions for EOI
391. Exchange of information should not be subject to unreasonable, dis-
proportionate or unduly restrictive conditions. There are no factors or issues
identified that could unreasonably, disproportionately or unduly restrict
effective EOI.

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ANNEXES – 111

Annex 1: Jurisdiction’s response to the review report 16

Australia has a long and established history of supporting and promoting
the exchange of information for tax purposes, and contributing to improving
global tax transparency.
The Australian Government continues to take decisive action to
strengthen and enhance the enforcement and scope of existing domestic tax
laws, counter multinational tax avoidance, and promote greater tax transpar-
ency. For example, since the last peer review in 2010, Australia has signed
the MAAC and implemented FATCA, the Common Reporting Standard and
Country-by-Country reporting.
Consistent with our commitment to a number of global transparency ini-
tiatives, Australia supports the role of the Global Forum and its peer review
processes in assisting and assessing jurisdictions’ implementation of the
international tax transparency standards.
Australia appreciates the diligent work undertaken by the assessment
team in evaluating Australia against the revised EOIR Standard. We are also
grateful for the detailed consideration and insightful comments and observa-
tions provided by the Peer Review Group.
Australia is pleased that our second peer review has again highlighted
our robust frameworks and real-world practice in relation to the access of tax
information, rights and safeguards, confidentiality, quality and timeliness of
requests and responses, as well as our extensive international EOI network.
Australia considers that these arrangements are central to promoting public
confidence in the effectiveness and fairness of the tax system.
Consistent with the findings of the report, Australia recognises that
there are opportunities through which we can further strengthen the avail-
ability of beneficial ownership information in light of the new requirements
under the EOIR standard. This is notwithstanding that Australia already has
a wide range of beneficial ownership information available (which includes

16. This Annex presents the Jurisdiction’s response to the review report and shall not
be deemed to represent the Global Forum’s views.

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112 – ANNEXES

information available through our AML/CTF, taxation, corporations law,
common law fiduciary duties and other legal frameworks).
In assessing countries against the revised criteria for the EOIR standard,
Australia recognises the Peer Review Group’s desire to ensure that issues
pertaining to horizontal equity are appropriately taken into consideration
as part of the evaluation process. This necessarily includes neutrality with
respect to the consideration of both civil and common law legal systems in
objectively evaluating the adequacy of beneficial ownership frameworks, and
with a focus on whether the relevant information to be exchanged is available,
accessible and can be provided on request.
Australia is proud that, as confirmed in the report, we have been able to
provide full beneficial ownership information whenever requested. That is,
we are fully effective in practice.
Australia thanks the Peer Review Group for this report.

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ANNEXES – 113

Annex 2: List of jurisdiction’s EOI mechanisms

1. Bilateral international agreements for the exchange of information

Date entered
EOI partner Type of agreement Date signed into force
Andorra TIEA 24-Sep-11 03-Dec-12
Anguilla TIEA 20-Mar-10 17-Feb-11
Antigua and Barbuda TIEA 30-Jan-07 14-Dec-09
Argentina DTA 29-Aug-99 30-Dec-99
Aruba TIEA 16-Dec-09 17-Aug-11
Austria DTA 08-Jul-86 01-Sep-88
Bahamas TIEA 30-Mar-10 11-Jan-11
Bahrain TIEA 15-Dec-11 15-Dec-12
Belgium DTA 20-Mar-84 20-Sep-86
Belize TIEA 31-Mar-10 11-Jan-11
Bermuda TIEA 10-Nov-05 20-Sep-07
British Virgin Islands TIEA 27-Oct-08 12-Apr-10
Brunei Darussalam TIEA 06-Aug-13 25-Feb-16
Canada DTC 21-May-80 29-Apr-81
Cayman Islands TIEA 30-Mar-10 12-Feb-11
Chile DTA 10-Mar-10 08-Feb-13
China (People’s Republic
DTA 17-Nov-88 28-Dec-90
of)
Cook Islands TIEA 28-Oct-09 02-Sep-11
Costa Rica TIEA 01-Jul-11 04-Feb-13
Curaçao TIEA 01-Mar-07 04-Apr-08
Czech Republic DTA 28-Mar-95 27-Nov-95
Denmark DTA 01-Apr-81 27-Oct-81

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114 – ANNEXES

Date entered
EOI partner Type of agreement Date signed into force
Dominica TIEA 31-Mar-10 08-Dec-11
Fiji DTA 15-Oct-90 28-Dec-90
Finland DTC 20-Nov-06 10-Nov-07
France DTC 20-Jun-06 01-Jul-09
Germany DTA 24-Nov-72 15-Feb-75
Germany DTA 12-Nov-15 7-12-16
Gibraltar TIEA 25-Aug-09 26-Jul-10
Grenada TIEA 30-Mar-10 09-Jan-12
Guatemala TIEA 26-Sep-13 Not yet in force
Guernsey TIEA 09-Oct-09 27-Jul-10
Hungary DTA 29-Nov-90 10-Apr-92
India DTA 25-Jul-91 30-Dec-91
Indonesia DTA 22-Apr-92 14-Dec-92
Ireland DTA 31-May-83 21-Dec-83
Isle of Man TIEA 29-Jan-09 05-Jan-10
Italy DTC 14-Dec-82 05-Nov-85
Japan DTC 31-Jan-08 03-Dec-08
Jersey TIEA 10-Jun-09 05-Jan-10
Kiribati DTA 23-Mar-91 28-Jun-91
Korea DTC 12-Jul-82 01-Jan-84
Liberia TIEA 11-Aug-11 23-May-12
Liechtenstein TIEA 21-Jun-11 21-Jun-12
Macao (China) TIEA 17-Jul-11 18-May-12
Malaysia DTA 20-Aug-80 26-Jun-81
Malta DTA 09-May-84 20-May-85
Marshall Islands TIEA 12-May-10 25-Nov-11
Mauritius TIEA 08-Dec-10 25-Nov-11
Mexico DTA 09-Sep-02 31-Dec-03
Monaco TIEA 01-Apr-10 13-Jan-11
Montserrat TIEA 23-Nov-10 25-Nov-11
Netherlands DTC 17-Mar-76 27-Sep-76
New Zealand DTC 26-Jun-09 19-Mar-10
Norway DTC 08-Aug-06 12-Sep-07

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ANNEXES – 115

Date entered
EOI partner Type of agreement Date signed into force
Papua New Guinea DTA 24-May-89 29-Dec-89
Philippines DTA 11-May-79 17-Jun-80
Poland DTA 07-May-91 04-Mar-92
Romania DTA 02-Feb-00 11-Apr-01
Russia DTA 07-Sep-00 17-Dec-03
Samoa TIEA 16-Dec-09 24-Feb-12
San Marino TIEA 05-Mar-10 11-Jan-11
Saint Vincent and the
TIEA 20-Mar-10 11-Jan-11
Grenadines
Singapore DTA 11-Feb-69 04-Jun-69
Sint Maarten TIEA 01-Mar-07 04-Apr-08
Slovak Republic DTA 24-Aug-99 22-Dec-99
South Africa DTC 01-Jul-99 21-Dec-99
Spain DTA 24-Mar-92 10-Dec-92
Sri Lanka DTA 18-Dec-89 21-Oct-91
Saint Kitts and Nevis TIEA 05-Mar-10 11-Jan-11
Saint. Lucia TIEA 30-Mar-10 10-Feb-11
Sweden DTA 14-Jan-81 04-Sep-81
Switzerland DTA 28-Feb-80 13-Feb-81
Switzerland DTC 30-Jul-13 14-Oct-14
Chinese Taipei DTA 29-May-96 21-Oct-96
Thailand DTC 31-Aug-89 27-Dec-89
Turkey DTA 29-Apr-10 05-Jun-13
Turks and Caicos Islands TIEA 30-Mar-10 25-Jan-11
United Kingdom DTC 21-Aug-03 17-Dec-03
United States DTC 06-Aug-82 31-Oct-83
Uruguay TIEA 30-Mar-10 01-Jul-14
Vanuatu TIEA 21-Apr-10 01-Sep-11
Viet Nam DTC 13-Apr-92 10-Dec-92
Total DTC 46

Total TIEA 36

Total DTC+ TIEA 82

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116 – ANNEXES

2. Convention on Mutual Administrative Assistance in Tax Matters
(amended)

The Convention on Mutual Administrative Assistance in Tax Matters
was developed jointly by the OECD and the Council of Europe in 1988 and
amended in 2010 (the amended Convention). 17 The Convention is the most com-
prehensive multilateral instrument available for all forms of tax co‑operation to
tackle tax evasion and avoidance, a top priority for all jurisdictions.
The 1988 Convention was amended to respond to the call of the G20 at
its April 2009 London Summit to align it to the international standard on
exchange of information on request and to open it to all countries, in par-
ticular to ensure that developing countries could benefit from the new more
transparent environment. The amended Convention was opened for signature
on 1st June 2011.
Australia signed the amended Convention on 1 June 2011. It deposited
its instrument of ratification with the Depositary on 30 August 2012 and the
Convention entered into force for Australia on 1 December 2012. Currently,
the amended Convention is in force in respect of the following jurisdictions [1]:

17. The amendments to the 1988 Convention were embodied into two separate
instruments achieving the same purpose: the amended Convention which inte-
grates the amendments into a consolidated text, and the Protocol amending the
1988 Convention which sets out the amendments separately.

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
Jurisdictions participating in the Convention on Mutual Administrative Assistance
in Tax Matters
Status – 12 May 2017

Original convention Protocol (P)/amended convention (AC)
Signature Deposit of instrument Signature Deposit of instrument
(opened on of ratification, Entry into (opened on of ratification, Entry into
Country/jurisdiction* 25-01-1988) acceptance or approval force 27-05-2010) acceptance or approval force
1 Albania 01-03-2013 (AC) 08-08-2013 01-12-2013
2 Andorra 05-11-2013 (AC) 25-08-2016 01-12-2016
3 Anguilla1 01-03-2014
4 Argentina 03-11-2011 (AC) 13-09-2012 01-01-2013
5 Aruba2 01-02-1997 01-09-2013
6 Australia 03-11-2011 (AC) 30-08-2012 01-12-2012
7 Austria 29-05-2013 (AC) 28-08-2014 01-12-2014

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
8 Azerbaijan 26-03-2003 03-06-2004 01-10-2004 23-05-2014 (P) 29-05-2015 01-09-2015
9 Barbados 28-10-2015 (AC) 04-07-2016 01-11-2016
10 Belgium 07-02-1992 01-08-2000 01-12-2000 04-04-2011 (P) 08-12-2014 01-04-2015
11 Belize 29-05-2013 (AC) 29-05-2013 01-09-2013
12 Bermuda3 01-03-2014
13 Brazil 03-11-2011 (AC) 01-06-2016 01-10-2016
14 British Virgin Islands4 01-03-2014
15 Bulgaria 26-10-2015 26-10-2015 (P) 14-03-2016 01-07-2016
16 Burkina Faso 25-08-2016 (AC)
17 Cameroon 25-06-2014 (AC) 30-06-2015 01-10-2015
18 Canada 28-04-2004 03-11-2011 (P) 21-11-2013 01-03-2014
19 Cayman Islands5 01-01-2014
20 Chile 24-10-2013 (AC) 07-07-2016 01-11-2016
21 China (People’s Republic of) 27-08-2013 (AC) 16-10-2015 01-02-2016
22 Colombia 23-05-2012 (AC) 19-03-2014 01-07-2014
23 Cook Islands 28-10-2016 (AC)
ANNEXES – 117
Original convention Protocol (P)/amended convention (AC)
Signature Deposit of instrument Signature Deposit of instrument
(opened on of ratification, Entry into (opened on of ratification, Entry into
Country/jurisdiction* 25-01-1988) acceptance or approval force 27-05-2010) acceptance or approval force
24 Costa Rica 01-03-2012 (AC) 05-04-2013 01-08-2013
118 – ANNEXES

25 Croatia 11-10-2013 (AC) 28-02-2014 01-06-2014
26 Curaçao6 10-10-2010 01-09-2013
27 Cyprus 7 10-07-2014 19-12-2014 01-04-2015 10-07-2014 (P) 19-12-2014 01-04-2015
28 Czech Republic 26-10-2012 (AC) 11-10-2013 01-02-2014
29 Denmark 16-07-1992 16-07-1992 01-04-1995 27-05-2010 (P) 28-01-2011 01-06-2011
30 Dominican Republic 28-06-2016 (AC)
31 El Salvador 01-06-2015 (AC)
32 Estonia 29-05-2013 (AC) 08-07-2014 01-11-2014
33 Faroe Islands8 01-01-2007 01 06 2011
34 Finland 11-12-1989 15-12-1994 01-04-1995 27-05-2010 (P) 21-12-2010 01-06-2011
35 France 17-09-2003 25-05-2005 01-09-2005 27-05-2010 (P) 13-12-2011 01-04-2012
36 Gabon 03-07-2014 (AC)
37 Georgia 12-10-2010 28-02-2011 01-06-2011 03-11-2010 (P) 28-02-2011 01-06-2011
38 Germany 17-04-2008 28-08-2015 01-12-2015 03-11-2011 (P) 28-08-2015 01-12-2015
39 Ghana 10-07-2012 (AC) 29-05-2013 01-09-2013
40 Gibraltar 9 01-03-2014
41 Greece 21-02-2012 29-05-2013 01-09-2013 21-02-2012 (P) 29-05-2013 01-09-2013
42 Greenland10 01-04-1995 01-06-2011
43 Guatemala 05-12-2012 (AC)
44 Guernsey11 01-08-2014
45 Hungary 12-11-2013 07-11-2014 01-03-2015 12-11-2013 (P) 07-11-2014 01-03-2015
46 Iceland 22-07-1996 22-07-1996 01-11-1996 27-05-2010 (P) 28-10-2011 01-02-2012
47 India 26-01-2012 (AC) 21-02-2012 01-06-2012
48 Indonesia 03-11-2011 (AC) 21-01-2015 01-05-2015
49 Ireland 30-06-2011 (AC) 29-05-2013 01-09-2013
50 Isle of Man12 01-03-2014
51 Israel 24-11-2015 (AC) 31-08-2016 01-12-2016
52 Italy 31-01-2006 31-01-2006 01-05-2006 27-05-2010  (P) 17-01-2012 01-05-2012

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
Original convention Protocol (P)/amended convention (AC)
Signature Deposit of instrument Signature Deposit of instrument
(opened on of ratification, Entry into (opened on of ratification, Entry into
Country/jurisdiction* 25-01-1988) acceptance or approval force 27-05-2010) acceptance or approval force
53 Jamaica 01-06-2016 (AC)
54 Japan 03-11-2011 28-06-2013 01-10-2013 03-11-2011 (P) 28-06-2013 01-10-2013
55 Jersey13 01-06-2014
56 Kazakhstan 23-12-2013 (AC) 08-04-2015 01-08-2015
57 Kenya 08-02-2016 (AC)
58 Korea 27-05-2010 26-03-2012 01-07-2012 27-05-2010 (P) 26-03-2012 01-07-2012
59 Kuwait 05-05-2017 (AC)
60 Latvia 29-05-2013 (AC) 15-07-2014 01-11-2014
61 Lebanon 12-05-2017 (AC) 12-05-2017 01-09-2017
62 Liechtenstein 21-11-2013 (AC) 22-08-2016 01-12-2016
63 Lithuania 07-03-2013 04-02-2014 01-06-2014 07-03-2013 (P) 04-02-2014 01-06-2014
64 Luxembourg 29-05-2013 11-07-2014 01-11-2014 29-05-2013 (P) 11-07-2014 01-11-2014
65 Malaysia 25-08-2016 (AC) 03-01-2017 01-05-2017

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
66 Malta 26-10-2012 (AC) 29-05-2013 01-09-2013
67 Marshall Islands 22-12-2016 (AC) 22-12-2016 01-04-2017
68 Mauritius 23-06-2015 (AC) 31-08-2015 01-12-2015
69 Mexico 27-05-2010 23-05-2012 01-09-2012 27-05-2010 (P) 23-05-2012 01-09-2012
70 Moldova 27-01-2011 24-11-2011 01-03-2012 27-01-2011 (P) 24-11-2011 01-03-2012
71 Monaco 13-10-2014 (AC) 14-12-2016 01-04-2017
72 Montserrat14 01-10-2013
73 Morocco 21-05-2013 (AC)
74 Nauru 28-06-2016 (AC) 28-06-2016 01-10-2016
75 Netherlands 25-09-1990 15-10-1996 01-02-1997 27-05-2010 (P) 29-05-2013 01-09-2013
76 New Zealand 26-10-2012 (AC) 21-11-2013 01-03-2014
77 Nigeria 29-05-2013 (AC) 29-05-2015 01-09-2015
78 Niue 27-11-2015 (AC) 06-06-2016 01-10-2016
79 Norway 05-05-1989 13-06-1989 01-04-1995 27-05-2010 (P) 18-02-2011 01-06-2011
80 Pakistan 14-09-2016 (AC) 14-12-2016 01-04-2017
81 Panama 27-10-2016 (AC) 16-03-2017 01-07-2017
ANNEXES – 119
Original convention Protocol (P)/amended convention (AC)
Signature Deposit of instrument Signature Deposit of instrument
(opened on of ratification, Entry into (opened on of ratification, Entry into
Country/jurisdiction* 25-01-1988) acceptance or approval force 27-05-2010) acceptance or approval force
82 Philippines 26-09-2014 (AC)
120 – ANNEXES

83 Poland 19-03-1996 25-06-1997 01-10-1997 09-07-2010 (P) 22-06-2011 01-10-2011
84 Portugal 27-05-2010 27-05-2010 (P) 17-11-2014 01-03-2015
85 Romania 15-10-2012 11-07-2014 01-11-2014 15-10-2012 (P) 11-07-2014 01-11-2014
86 Russia 03-11-2011 (AC) 04-03-2015 01-07-2015
87 Saint Kitts and Nevis 25-08-2016 (AC) 25-08-2016 01-12-2016
88 Saint Lucia 21-11-2016 (AC)
89 Saint Vincent and the Grenadines 25-08-2016 (AC) 31-08-2016 01-12-2016
90 Samoa 25-08-2016 (AC) 31-08-2016 01-12-2016
91 San Marino 21-11-2013 (AC) 28-08-2015 01-12-2015
92 Saudi Arabia 29-05-2013 (AC) 17-12-2015 01-04-2016
93 Senegal 04-02-2016 (AC) 25-08-2016 01-12-2016
94 Seychelles 24-02-2015 (AC) 25-06-2015 01-10-2015
95 Singapore 29-05-2013 (AC) 20-01-2016 01-05-2016
96 Sint Maarten15 10-10-2010 01-09-2013
97 Slovak Republic 29-05-2013 (AC) 21-11-2013 01-03-2014
98 Slovenia 27-05-2010 31-01-2011 01-05-2011 27-05-2010 (P) 31-01-2011 01-06-2011
99 South Africa 03-11-2011 (AC) 21-11-2013 01-03-2014
100 Spain 12-11-2009 10-08-2010 01-12-2010 11-03-2011 (P) 28-09-2012 01-01-2013
101 Sweden 20-04-1989 04-07-1990 01-04-1995 27-05-2010 (P) 27-05-2011 01-09-2011
102 Switzerland 15-10-2013 (AC) 26-09-2016 01-01-2017
103 Tunisia 16-07-2012 (AC) 31-10-2013 01-02-2014
104 Turkey 03-11-2011 (AC)
105 Turks and Caicos Islands16 01-12-2013
106 Uganda 04-11-2015 (AC) 26-05-2016 01-09-2016
107 Ukraine 20-12-2004 26-03-2009 01-07-2009 27-05-2010 (P) 22-05-2013 01-09-2013
108 United Arab Emirates 21-04-2017 (AC)
109 United Kingdom 24-05-2007 24-01-2008 01-05-2008 27-05-2010 (P) 30-06-2011 01-10-2011
110 United States 28-06-1989 13-02-1991 01-04-1995 27-05-2010 (P)

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
Original convention Protocol (P)/amended convention (AC)
Signature Deposit of instrument Signature Deposit of instrument
(opened on of ratification, Entry into (opened on of ratification, Entry into
Country/jurisdiction* 25-01-1988) acceptance or approval force 27-05-2010) acceptance or approval force
111 Uruguay 01-06-2016 (AC) 31-08-2016 01-12-2016

Notes: * This table includes State Parties to the Convention as well as jurisdictions, which are members of the GFTEI or that have been listed in
Annex B naming a competent authority, to which the application of the Convention has been extended pursuant to Article 29 of the Convention.
1. Extension by the United Kingdom.
2. Extension by the Kingdom of the Netherlands.
3. Extension by the United Kingdom.
4. Extension by the United Kingdom.
5. Extension by the United Kingdom.
6. Extension by the Kingdom of the Netherlands. Curacao used to be a constituent of the “Netherlands Antilles”, to which the original
Convention applied as from 01-02-1997.
7. Note by Turkey: The information in this document with reference to “Cyprus” relates to the southern part of the Island. There is no
single authority representing both Turkish and Greek Cypriot people on the Island. Turkey recognises the Turkish Republic of Northern

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
Cyprus (TRNC). Until a lasting and equitable solution is found within the context of the United Nations, Turkey shall preserve its
position concerning the “Cyprus issue”.
Note by all the European Union Member States of the OECD and the European Union: The Republic of Cyprus is recognised by all
members of the United Nations with the exception of Turkey. The information in this document relates to the area under the effective
control of the Government of the Republic of Cyprus.
8. Extension by the Kingdom of Denmark.
9. Extension by the United Kingdom.
10. Extension by the Kingdom of Denmark.
11. Extension by the United Kingdom.
12. Extension by the United Kingdom.
13. Extension by the United Kingdom.
14. Extension by the United Kingdom.
15. Extension by the Kingdom of the Netherlands. Sint Maarten used to be a constituent of the “Netherlands Antilles”, to which the
original Convention applied as from 01-02-1997.
16. Extension by the United Kingdom.
ANNEXES – 121
122 – ANNEXES

3. Other Multilateral EOI agreements

Australia is not party to other Multilateral EOI agreements.

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
ANNEXES – 123

Annex 3: List of laws, regulations and other material received

Tax law, regulations and other material
Income Tax Assessment Act 1936
Tax Administration Act 1953
Income Tax Assessment Act 1997
Practice Statement PS LA 2007/13 (Exchange of Information with foreign
revenue authorities in relation to goods and services tax, under inter-
national tax agreements)
Practice Statement PS LA 2006/9 (Referral of work to International
Strategy and Operations)
Practice Statement PS LA 2006/3(The types of information that can be
exchanged under Article 19 of the Australia-Singapore tax treaty)
Practice Statement PS LA 2005/2 (Penalty for failure to keep or retain
records)
Taxation Ruling 96/7 (Income tax: record keeping – section 262A – gen-
eral principles)
Taxation Ruling TR 2005/9 (Income tax: record keeping – electronic
records)
Taxation Determination TD 2002/16 (obligations under the Income Tax
Assessment Act 1936 where a business chooses to keep some of its
records as encrypted information)
ATO Guidelines to Accessing Professional Accounting advisor’s Papers
ANAO Audit Report (The Management and Use of Double Taxation
Agreement Information Collected through Automatic Exchange)
Specification for Annual Investment Income Reports
ATO Guide to Information Security
Company Tax Return

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
124 – ANNEXES

Anti-money laundering law
Policy (Additional Customer Due Diligence Requirements) Principles 2014
The Anti-Money Laundering and Counter-Terrorism Financing Act 2006
The Financial Transactions Reporting Act 1998

Commercial law, regulations and other material
Banking Act 1959
Corporations Act 2001
Australian Capital Territory – Partnership Act 1963
New South Wales – Commons Management Act 1989
New South Wales – Partnership Act 1892
New South Wales – Trustee Act 1925
Northern Territory – Partnership Act 1997
Queensland – Partnership Act 1891
Queensland – Partnership (Limited Liability) Act 1988
Queensland – Trust Accounts Act 1973
South Australia – Partnership Act 1891
South Australia – Trustee Regulations 1996
Tasmania – Partnership Act 1891
Tasmania – Trustee Companies Act 1953
Victoria – Partnership Act 1958
Victoria – Unclaimed Money Act 2008
Victoria – Trustee Act 1958
Western Australia – Limited Partnership Act 1905
Western Australia – Partnership Act 1895
Western Australia – Trustee Act 1962
Western Australia – Trustee Companies Act 1987

Other legislation and regulations
International Tax Agreements Act 1953

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
ANNEXES – 125

Annex 4: Authorities interviewed during on-site visit

Australian Tax Office

Acting Deputy Commissioner, Large Business and International
Deputy Commissioner, Case Leadership, Small and Medium Enterprises
Assistant Commissioner – International Relations
Manager, EOI Unit
Senior Technical Specialist, EOI Unit
Members – EOI Unit
Auditors Responsible for executing EOI requests
Audit Manager

Australian Securities and Investment Commission (ASIC)

Counsel, Registry Services and Licensing
Senior Manager, Major Fraud and International
Senior Manager, International Cooperation Requests

Australian Transaction Reports and Analysis Centre (AUSTRAC)

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126 – ANNEXES

Annex 5: List of in-text recommendations

• Element A.1. Although the gap is limited, Australia should ensure that
legal and beneficial ownership information for the de-registered compa-
nies is kept for a minimum period of 5 years in all cases.
• Element A.2. Although the gap is limited, Australia should ensure that
accounting information for the de-registered companies is kept for a
minimum period of 5 years in all cases.
• Element C.2: Australia should continue to develop its EOI network with
all relevant partners.
• Element C.5: Status updates – It is recommended that Australia ensures
that status updates to EOI partners after 90 days are provided in all those
cases where it is not possible to provide a substantive response within that
timeframe.

PEER REVIEW REPORT – SECOND ROUND – AUSTRALIA © OECD 2017
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(23 2017 10 1 P) ISBN 978-92-64-28005-2 – 2017
Global Forum on Transparency and Exchange
of Information for Tax Purposes
Peer Review Report on the Exchange of Information
on Request Australia 2017 (Second Round)

The Global Forum on Transparency and Exchange of Information for Tax Purposes is
a multilateral framework for tax transparency and information sharing, within which over
140 jurisdictions participate on an equal footing.
The Global Forum monitors and peer reviews the implementation of international standard
of exchange of information on request (EOIR) and automatic exchange of information.
The EOIR provides for international exchange on request of foreseeably relevant information
for the administration or enforcement of the domestic tax laws of a requesting party. All Global
Forum members have agreed to have their implementation of the EOIR standard be assessed
by peer review. In addition, non-members that are relevant to the Global Forum’s work are
also subject to review. The legal and regulatory framework of each jurisdiction is assessed
as is the implementation of the EOIR framework in practice. The final result is a rating for each
of the essential elements and an overall rating.
The first round of reviews was conducted from 2010 to 2016. The Global Forum has agreed
that all members and relevant non-members should be subject to a second round of review
starting in 2016, to ensure continued compliance with and implementation of the EOIR
standard. Whereas the first round of reviews was generally conducted as separate reviews
for Phase 1 (review of the legal framework) and Phase 2 (review of EOIR in practice), the EOIR
reviews commencing in 2016 combine both Phase 1 and Phase 2 aspects into one review.
Final review reports are published and reviewed jurisdictions are expected to follow up on any
recommendations made. The ultimate goal is to help jurisdictions to effectively implement
the international standards of transparency and exchange of information for tax purposes.
For more information on the work of the Global Forum on Transparency and Exchange
of Information for Tax Purposes, please visit www.oecd.org/tax/transparency.
This report contains the 2017 Peer Review Report on the Exchange of Information on Request
of Australia.

Consult this publication on line at http://dx.doi.org/10.1787/9789264280069-en.
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